Madras High Court
T. Rajilarani vs The Director Of Public Health on 6 September, 2022
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
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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 2nd 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
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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
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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.
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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,
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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
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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. But
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W.P. No.2610 of 2019
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 there
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W.P. No.2610 of 2019
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
authority has given its findings based on no evidence, this Court under
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W.P. No.2610 of 2019
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.
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
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W.P. No.2610 of 2019
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.
22. With the aforesaid directions, this writ petition is disposed of.
No costs.
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W.P. No.2610 of 2019
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.
ABDUL QUDDHOSE, J.
vsi2
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W.P. No.2610 of 2019
W.P. No.2610 of 2019
06.09.2022
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