W.P. No.2610 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.09.2022
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
W.P. No.2610 of 2019
T. Rajilarani ...Petitioner
vs.
1. The Director of Public Health
and Preventive Medicine,
Chennai – 600 006.
2. The Deputy Director of Health Services,
Namakkal,
Namakkal District. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus to call for the records
relating to the impugned order of the first respondent in
R.No.088344/DA/S3/18, dated 16-12-2018 and the impugned order of
the second respondent in Na.Ka.No.686/A4/2017, dated 24.08.2018 and
quash the said orders and direct the respondents to reinstate the petitioner
in service with all attendant benefits.
For petitioner : Mr.M.Loganathan
for Mr.K.T.Sivakumar
For respondents : Mr.T. Arun Kumar,
Addl. Govt. Pleader
https://www.mhc.tn.gov.in/judis
1/13
W.P. No.2610 of 2019
ORDER
This writ petition has been filed challenging the order dated 16.12.2018 passed by the 1st respondent confirming the order dated 24.08.2018 passed by the 2nd respondent. Under the impugned orders, the petitioner has been dismissed from service.
2. The petitioner was appointed as an Anganwadi Worker on 27.12.1993 and promoted as Village Health Nurse on 27.10.2006. When she was working as a Village Health Nurse at the Additional Public Health Centre, Senthipatti, Erumapatti Block, Namakkal District, a charge Memo was issued to her by the 2 nd respondent on 30.01.2017. The charge against the petitioner was that she demanded a bribe of Rs.1,500/- from one Perumal between 28.06.2016 and 04.07.2016 for online registration of his wife's name for payment of the second installment of Rs.4,000/- given for the second delivery under Dr.Muthulakshmi Reddi Maternity Medical Assistance Scheme. The Charge Memo was issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules.
3. The petitioner has submitted her explanation on 09.06.2017 denying the charges. Thereafter an enquiry was conducted and the Enquiry Officer submitted his report on 24.01.2018 holding that the https://www.mhc.tn.gov.in/judis 2/13 W.P. No.2610 of 2019 charge against the petitioner has been proved. A copy of the enquiry report was also communicated to the petitioner and she was directed to submit her explanation with regard to the findings of the enquiry officer. The petitioner has submitted her explanation on 01.03.2018. Thereafter, the 2nd respondent issued an order dated 24.08.2018 imposing the punishment of removal from service against the petitioner.
4. Aggrieved by the said order, the petitioner preferred an appeal to the 1st respondent on 24.09.2018. The 1st respondent confirmed the findings of the 2nd respondent and rejected the petitioner's appeal on 16.12.2018. Aggrieved by the impugned orders, the petitioner has filed this writ petition.
5. The petitioner has challenged the impugned orders on the following grounds :-
a) the Enquiry Officer has not referred to or assessed or appreciated the evidence of any of the witnesses and has not referred to any documentary evidence in his Enquiry Report. In the absence of any reference to any evidence, the findings of the Enquiry Officer, according to the petitioner are based on no evidence.
b) It has been stated in the order of removal that the Enquiry https://www.mhc.tn.gov.in/judis 3/13 W.P. No.2610 of 2019 Officer viz., N.Nakkeeran examined the petitioner and the witnesses in the presence of the Vigilance Officer. The presence of the Vigilance Officer is unwarranted since he is neither the Prosecutor nor the Presenting Officer. According to the petitioner the Vigilance Officer's presence caused fear and apprehension in the minds of the witnesses. According to the petitioner such an enquiry in the presence of Vigilance Officer cannot be stated to be a fair and proper enquiry.
c) The charge against the petitioner is that she demanded a bribe of Rs.1500/- from one Perumal. According to the petitioner there is absolutely no evidence to prove the said charge. The major punishment of removal is therefore liable to be set aside, since without any evidence, it has been held by the respondents that the charge against the petitioner has been proved.
d) In the order of removal, it has been stated that the charge against the petitioner has been proved on the basis of the enquiry report and the documents of the Vigilance and Anti-Corruption Department. According to the petitioner, no such documents of the Vigilance and Anti- Corruption Department were furnished to the petitioner and she was not given any opportunity to test its veracity. Even the details of the said documents have not been disclosed.
https://www.mhc.tn.gov.in/judis 4/13 W.P. No.2610 of 2019
e) According to the petitioner, the impugned orders have been passed in violation of principles of the natural justice as the basic and elementary principle of domestic enquiry that the delinquent employee must be furnished with copies of the documents on which reliance is placed must be made available to the petitioner. Since this has not been done, the order of removal passed on the basis of the said documents is unsustainable in law.
f) The only charge against the petitioner as seen from the charge memo is that she demanded a bribe of Rs.1,500/-. On the other hand in the order of removal several other allegations have been made and the removal has been ordered on the basis of these allegations. According to the petitioner, she was not given an opportunity to submit her explanation with regard to the new allegation mentioned in the impugned orders.
g) Even though the CD cited as Evidence No.13 in the charge Memo was sought to be relied upon against the petitioner, it was not produced during the enquiry and its veracity could not be tested by the petitioner. Therefore, according to the petitioner, it cannot be treated as evidence for the purpose of proving the charge.
h) Even though the order of removal referred to additional explanation submitted by the petitioner after the Enquiry Officer's report, https://www.mhc.tn.gov.in/judis 5/13 W.P. No.2610 of 2019 there is no discussion or appreciation of the points raised by the petitioner in the said additional explanations.
i) According to the petitioner, the opportunity to submit additional explanation is a valuable opportunity given to a delinquent employee and it is not an empty formality.
J. The 1st respondent, the Appellate Authority has also by total non application of mind has confirmed the findings of the 2nd respondent.
6. A counter affidavit has been filed by the 1st respondent. In the counter affidavit, the 1st respondent has denied the allegations of the petitioner. The 1st respondent has also stated that the petitioner was provided with copies of all documents reflected in the impugned orders including two nos. of CD, which contains the conversation between the complainant and the petitioner which confirms that the petitioner had demanded a bribe of Rs.1,500/-.
7. According to the 1st respondent, the 2nd respondent in his final order dated 24.08.2018 has clearly narrated the disciplinary case and only based on the evidence available on record has imposed the punishment of removal from service. It is also contended that the final order issued by the 2nd respondent is a speaking order and has been passed by following the procedure laid down in Rule 17(b) of the Tamil https://www.mhc.tn.gov.in/judis 6/13 W.P. No.2610 of 2019 Nadu Civil Services (Discipline and Appeal) Rules by considering all the relevant materials.
8. It is also contended that based on the complaint received against the petitioner, a preliminary enquiry was conducted by the Director, Vigilance and Anti Corruption into the allegation and the Director, Vigilance and Anti Corruption has established a prima facie case against the petitioner and has recommended for departmental disciplinary action against the petitioner. According to the 1st respondent, a fair hearing was afforded to the petitioner in the enquiry proceedings and infact the petitioner was allowed to cross examine the witnesses of the prosecution but despite granting an opportunity to cross examine, the petitioner has failed to utilise the said opportunity.
9. According to the 1st respondent, the cash benefits under Dr.Muthulakshmi Reddi Maternity Medical Assistance Scheme is intended to the poor pregnant women in villages who are below the poverty line, in order to take care of themselves and their child, who are in the womb. The said programme has been implemented by the government to take care of the poor women folk in the villages, for which the Village Health Nurses in Primary Health Centres have been entrusted with responsibility to carry out the programme successfully. https://www.mhc.tn.gov.in/judis 7/13 W.P. No.2610 of 2019 But according to the 1st respondent, the petitioner, being the Village Health Nurse, who ought to have shouldered a higher responsibility in implementation of the Government Programme has demanded bribe from the beneficiaries of Dr.Muthulakshmi Reddi Maternity Medical Assistance Scheme.
10. According to the 1st respondent only based on available evidence, the petitioner has been removed from service under the impugned orders.
11. Heard Mr.M.Loganathan, learned counsel for the petitioner and Mr.T.Arun Kumar, learned Additional Government Pleader for the respondents.
12. The learned counsel for the petitioner drew the attention of this Court to the findings of the 2nd respondent in its impugned order dated 24.08.2018 and would submit that even though a charge was framed against the petitioner for having demanded a bribe of Rs.1,500/- from a beneficiary under the scheme, the findings relates to other issues.
13. This Court has also perused and examined the order dated 24.08.2018 passed by the 2nd respondent.
14. As seen from the impugned order dated 24.08.2018 passed by the 2nd respondent removing the petitioner from Government service https://www.mhc.tn.gov.in/judis 8/13 W.P. No.2610 of 2019 there is no discussion with regard to the charge framed against the petitioner viz., that she demanded a bribe of Rs.1,500/- from a beneficiary under the scheme. Infact in the impugned order dated 24.08.2018, it refers to a finding that the petitioner had not vaccinated the beneficiary under the scheme and there is no reference to demand of a bribe of Rs.1,500/- by the petitioner from the said beneficiary. Therefore, the finding given by the 2nd respondent is contrary to the charge framed against the petitioner and is perverse. Though the learned Additional Government Pleader appearing for the respondent has categorically contended that only based on preponderance of probability, the petitioner has been removed from service, this Court is of the considered view that even on preponderance of probability, the findings found in the enquiry report cannot be sustained as it is unconnected with the charge viz., that the petitioner had demanded a bribe of Rs.1,500/- from a beneficiary under the scheme.
15. The learned counsel for the petitioner also drew the attention of this Court to a judgment of the Hon'ble Supreme in the case of United Bank of India vs. Biswanath Bhattacharjee, dated 31.01.2022, in Civil Appeal No.8258 of 2009 and would submit that whenever a disciplinary https://www.mhc.tn.gov.in/judis 9/13 W.P. No.2610 of 2019 authority has given its findings based on no evidence, this Court under Article 226 of the Constitution of India can exercise its judicial review.
16. As seen from the impugned order dated 24.08.2018 passed by the 2nd respondent, without any evidence, the petitioner has been removed from service as the finding given by the 2nd respondent pertains to the non vaccination by the petitioner to the beneficiary and it does not pertain to the demand of bribe by the petitioner from the beneficiary.
17. Since the findings of the authorities below have no relevance to the charge framed against the petitioner, this Court is of the considered view that the matter will have to be remanded back to the original authority viz., the 2nd respondent for fresh consideration on merits and in accordance with law, after affording a fair hearing to the petitioner.
18. The 1st respondent, who is the Appellate Authority has also confirmed the findings of the 2nd respondent in the impugned order dated 16.12.2018 by total non application of mind to the irrelevant findings of the 2nd respondent in the impugned order dated 24.08.2018. https://www.mhc.tn.gov.in/judis 10/13 W.P. No.2610 of 2019
19. Since both the impugned orders are passed by total non application of mind to the charge memo dated 30.01.2017 issued to the petitioner and have been passed in violation of principles of natural justice as the petitioner categorically contends that he has not received the vigilance committee report, which is the basis of the charge, both the impugned orders are liable to be quashed and the matter has to be remanded back to the 2nd respondent for fresh consideration on merits and in accordance with law, after affording a fair hearing to the petitioner.
20. For the foregoing reasons, the impugned order dated 16.12.2018 passed by the 1st respondent as well as the order dated 24.08.2018 passed by the 2nd respondent are hereby quashed and the matter is remanded back to the original authority for fresh consideration on merits and in accordance with law, after affording a fair hearing to the petitioner.
21. The original authority is directed to pass final orders, within a period of six months from the date of receipt of a copy of this order. https://www.mhc.tn.gov.in/judis 11/13 W.P. No.2610 of 2019
22. With the aforesaid directions, this writ petition is disposed of. No costs.
06.09.2022 Index: Yes/No Internet: Yes/No Speaking Order/Non-Speaking Order vsi2 To
1. The Director of Public Health and Preventive Medicine, Chennai – 600 006.
2. The Deputy Director of Health Services, Namakkal, Namakkal District.
https://www.mhc.tn.gov.in/judis 12/13 W.P. No.2610 of 2019 ABDUL QUDDHOSE, J.
vsi2 W.P. No.2610 of 2019 06.09.2022 https://www.mhc.tn.gov.in/judis 13/13