Madras High Court
A.Ashok Kumar vs The Director Of Medical & Rural on 1 February, 2022
W.P(MD)No.13086 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.13086 of 2021 and
WMP(MD) Nos.15650, 10125 & 10126 of 2021
A.Ashok Kumar ...Petitioner
vs.
1.The Director of Medical & Rural,
Health Services,
Chennai – 600 006.
2.The Director of Medical & Rural,
Health Services (ESI),
Chennai – 600 006.
3.The Regional Administrative
Medical Officer (ESIS),
Madurai,
K.K.Nagar,
Madurai – 625 020.
4.Thiru.S.Athangarayan
Office Superintendent,
The Regional Administrative
Medical Office (ESIS),
Madurai,
K.K.Nagar,
Madurai – 625 020. ...Respondents
(R4 is impleaded vide Court order dated 01.02.2022 in WMP(MD)No.15650 of 2021 in
WP(MD) No.13086 of 2021 by BPJ)
1/10
https://www.mhc.tn.gov.in/judis
W.P(MD)No.13086 of 2021
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India, praying this Court to issue a Writ of Certiorarified Mandamus,
calling for the records relating to the impugned transfer order of the first
respondent in Ref.No.13965/ESI/E2/1/2021 dated 19.07.2021 and
consequent impugned proceedings of the second respondent in Ref.No.
13965/ESI/E2/1/2021, dated 23.07.2021 and quash the same and
consequently forbearing the respondents herein from interfering with the
day today work of the petitioner in the office of the second respondent
herein.
For Petitioner : No appearance
For R1 to R3 : Mr.S.Saji Bino
Special Government Pleader
For R4 :Mr.B.Michael Sebastin for
Ms.Xavier Rajini
ORDER
The Writ petition is filed as against the transfer order passed
by the first respondent in Ref.No.13965/ESI/E2/1/2021 dated 19.07.2021
transferring the petitioner from Madurai to Tuticorin and consequent
relieving order of the second respondent in Ref.No.
13965/ESI/E2/1/2021, dated 23.07.2021.
2.Today(01.02.2022), when the matter is taken up for
hearing, there is no representation for the petitioner.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.13086 of 2021
3. The petitioner who was working as Office Superintendent
in the Office of the Regional Administrative Medical Officer (ESIS),
Madurai was transferred and posted as Office Superintendent, Office of
the District Siddha Medical Officer, Tuticorin in the existing vacancy, by
order dated 19.07.2021. The petitioner has challenged the order of
transfer and the consequential relieving order, on the ground that the
order of transfer has been passed as punitive in nature. When the
departmental proceedings was pending as against the petitioner, the
petitioner has raised the following grounds in the writ petition:-
i. The impugned transfer order issued by the first respondent
and consequent impugned proceedings of the second
respondent, pending disciplinary proceedings have been
issued with motive, malafide intention, and without there
being any real administrative reason.
ii. Though the impugned transfer order is said to have been
issued on administrative reason, the true reason behind the
transfer order is with motive and malafide intention at the
instance of the second respondent herein, requisitioning the
first respondent in his letter No.13965/ESI/E2/1/2021, dated
29.06.2021 to transfer the petitioner from the third respondent
office pending disciplinary proceedings, Hence, the first
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W.P(MD)No.13086 of 2021
respondent has passed the impugned order of transfer with
malafide intention at the request of the second respondent and
there is no real administrative reason.
iii. It is submitted that the impugned order of transfer issued by
the first respondent and consequent impugned proceedings of
second respondent are only to harass the petitioner pending
disciplinary proceedings with malafide intention. Since
charge memo was issued without any annexure for evidence
of documents or witness to speak to the truth. Hence, pending
charge, impugned transfer order has been issued as an
alternative punishment.
iv. In the instance case, the impugned order of transfer has been
passed in lieu of punishment during pendency of disciplinary
proceedings finding no evidence to prove to prove the charge
against the petitioner.
v. It is submitted that the Honourable Supreme Court has held
that when an order of transfer is passed in lieu of punishment,
the same is liable to be set aside being wholly illegal and the
said judgment is reported in AIR 2009 SC 1399.
vi. The respondents 1 & 2 herein have adopted the power of
transfer as an alternative for punishment which punishment
cannot be inflicted without going through the process as
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W.P(MD)No.13086 of 2021
prescribed under Article 311 of the Constitution of India. The
transfer order under challenge has been passed to bypass the
disciplinary machinery.
4.Mr.B.Michael Sebastin for Ms.Xavier Rajini, learned
counsel appearing for the proposed fourth respondent filed WMP(MD)
No.15650 of 2021 and submits that this writ petition is filed challenging
the order of transfer, transferring the petitioner from Madurai to
Tuticorin. Subsequently, the petitioner was also transferred from
Tuticorin to Melur vide proceedings in 77291/E2/3/2020 dated
31.12.2021 and therefore nothing survives in this writ petition. The
submission made by the learned counsel appearing for the proposed
fourth respondent is recorded. The impleading petition in WMP(MD) No.
15650 of 2021 in WP(MD) No.13086 of 2021 is ordered.
5.Mr.S.Saji Bino, learned Special Government Pleader
appearing for the fourth respondent expressed that he is not having the
papers.
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W.P(MD)No.13086 of 2021
6.This Court has perused the writ petition, counter affidavit
filed by the third respondent, other relevant documents and all the
available materials on record.
7. In the counter affidavit filed by the third respondent, it is
stated that the petitioner was issued with the charge memo dated
06.02.2018 that the annual intern submitted by the Medical Officer in
Madurai Region for the year 2017-2018 is for enhanced quantity and
value and the same was detected during the audit objection. The charges
are also extracted as under:-
i. The RRC-140 Annual indent for the year 2017-18 based
on the Indents submitted by the Medical Officers in
Madurai region to the value of Rs.13,12,52,093/-
(Rupees Thirteen Crores twelve Lakhs Fifty Two
Thousand and Ninety Three only) and the Indents were
consolidated and submitted by the Store Medical
Officer/Medical Store Officer with necessary
authentication.Thiru.A.Ashok Kumar, Office
Superintendent, in Store Section has manipulated and
enhances the Indents for Rs.24,59,09,442/- (Rupees
Twenty four crore fifty nine lakhs nine thousand and four
hundred and forty two only) with the concurrence of the
Regional Administrative Medical Officer (ESI), Madurai
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W.P(MD)No.13086 of 2021
without any proper Indents and submit the indent to the
Directorate for Rs.37,67,61,535/- (Rupees Thirty Seven
crores seventy one lakhs sixty one thousand five hundred
and thirty five only).
ii. In the supply of Siddha Medicine of Rub-N-Run Oil to 5
ESI Dispensaries, it was found that of 5000 Bottles were
not supplied to ESI Dispensary, Thirunagar, and
Madurai. Hence, the Accountant General raised a audit
objection to recover the value of the said medicine of Rs.
9,45,000/-(Rupees Nine lakhs Forty Five thousand only).
Thus, Thiru.A.Ashok Kumar, Office Superintendent, in
Store Section has misappropriated the Government
Funds.
iii. The peritoneal dialysis bags were supplied to Dispensary,
Tallakulam, Madurai even though non receipt Indnet
from that Dispensary without the approval of the store
Medical Officer & Medical Store Officer. Due to non
usage of the said item upto its expiry, which make loss of
Government money of the tune of Rs.5,50,000/- (Rupees
Five Lakhs Fifty Thousand only). Thiru.A.Ashok
Kumar, Office Superintendent, in Store Section is
responsible for the loss of above said Government
money.
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W.P(MD)No.13086 of 2021
iv. Thiru.A.Ashok Kumar, Office Superintendent, who was
working in the store section from his initial appointment
has maintained the Siddha medicine stock register which
is not duty of him. The speciality and interim drugs were
sent to the Directorate regularly without the approval of
store Medical Officer / Medical store Officer and he had
prepared the indent over and above the requirements as
indented by the Store Medical Officer/Medical Store
officer.
8.It is seen that the enquiry is still pending. Pending the
enquiry, in order to have a smooth conduct of enquiry and also
restraining the petitioner from tampering of documents, the petitioner,
who is facing grave charge of misappropriation of Government funds
under violation of Rule 20(1) and Rule 20(2) of Tamil Nadu Government
Servants Conduct Rules, 1973, was transferred from Madurai to
Tuticorin. It is also reported by the learned counsel appearing for the
fourth respondent that the petitioner was also transferred from Tuticorin
to Melur, vide proceedings in 77291/E2/3/2020, dated 31.12.2021.
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W.P(MD)No.13086 of 2021
9.In view of the subsequent developments, this Court is not
inclined to interfere with the order of transfer. Accordingly this writ
petition is dismissed. No costs. Consequently, connected Miscellaneous
Petitions in WMP(MD) Nos.10125 & 10126 of 2021 are closed.
01.02.2022
(2/2)
Index:Yes
Internet:Yes
vrn
Note :
In view of the present lock down owing to COVID-19 pandemic, a web
copy of the order may be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1.The Director of Medical & Rural,
Health Services,
Chennai – 600 006.
2.The Director of Medical & Rural,
Health Services (ESI),
Chennai – 600 006.
3.The Regional Administrative
Medical Officer (ESIS),
Madurai,
K.K.Nagar,
Madurai – 625 020.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.13086 of 2021
B.PUGALENDHI, J.
vrn
ORDER MADE IN
W.P(MD)No.13086 of 2021 and
WMP(MD) Nos.15650, 10125 & 10126 of 2021
01.02.2022
(2/2)
https://www.mhc.tn.gov.in/judis
