This writ petition is filed challenging the order dated 02.04.2003 passed by the 1st respondent and the order dated 06.05.2002 passed by the 2nd respondent and for a consequential direction to the respondents to reinstate the petitioner in service with all service benefits including arrears of pay and allowances and seniority, etc.
2. The facts leading to the filing of this case are, as under :
(i) The petitioner was temporarily appointed as Multipurpose Health Worker and posted at Pudupettai Primary Health Centre by proceedings of the District Health Officer, Health Unit District, Kallakurichi, dated 21.12.1982. Thereafter, while the petitioner was working as Village Health Nurse at Keel Peramanallur Primary Health Centre, she was placed under suspension by the 2nd respondent on 15.10.2001. The 2nd respondent issued a charge sheet to the petitioner by framing three charges against her. The petitioner was neither paid the subsistence allowance nor the arrears of pay and allowances till she was removed from service by an order dated 06.05.2002.
(ii) It is further stated that the 2nd respondent himself has framed charges against the petitioner and conducted ex parte enquiry, without affording any reasonable opportunity to her to defend the case. According to the petitioner, the 2nd respondent herein, in total violation of the principles of natural justice, set her ex parte and removed her from service, though a bias petition is pending against him with the 1st respondent. The 2nd respondent did not conduct the actual enquiry in person and did not call the witnesses if any, for chief examination. But, he himself ordered that the charges framed against the petitioner are proved and thereby without giving the 2nd Show Cause notice along with the so called enquiry report to the petitioner, removed her from service.
(iii) Pursuant thereto, the petitioner preferred an appeal to the 1st respondent and the same was rejected after 10 months from the date of appeal. Further, the petitioner made a representation to the 1st respondent on 11.03.1997 claiming service benefits such as pay and allowances for the period from 14.01.1995 to 22.01.1995, 13.03.1996 to 22.07.1996 and 08.06.1996 to 12.03.1996, etc. She also claimed in her representation that she was denied arrears of pay and allowances from the year 1997 onwards, uniform allowances and arrears for 5 years, bonus for 1994-95 and 1995-96, G.P.F. advance and was also denied to accept the handing over of charges by her at Arapakkam Primary Centre, etc. Since there was no reply on her representation, the petitioner approached the Tribunal in O.A.No.9144 of 1998 and the Tribunal disposed of the said O.A. by an order dated 13.11.1998 with a direction to the respondent therein to pass an order on the petitioner's representation dated 11.03.1997.
(iv) On receipt of the said order dated 13.11.1998, the respondents herein complied with some of the claims of the petitioner in her representation dated 11.03.1997. Thereafter, the 2nd respondent herein transferred the petitioner to a remote place and hence she approached the Tribunal in O.A.No.7487/2000 for remedy and the Tribunal granted stay. The 2nd respondent herein complied with the said order of stay, however denied to pay her the salary. In the said circumstances, the petitioner caused a contempt notice to the respondents herein; but, the respondents did not pay the salary to her till the date of her removal from service.
(v) On 09.04.2001, the petitioner made a detailed representation to the 1st respondent herein stating that the 2nd respondent harassed her, ill-treated her and also refused to pay the pay and allowances for certain period. According to the petitioner, the 2nd respondent herein in collusion with the 1st respondent placed her under suspension by an order dated 15.10.2001. Though there is a direction in the order dated 15.10.2001 for payment of subsistence allowance, no such allowance was paid to her till she was removed from service. The petitioner would also state that in the Memorandum of charges issued by the 2nd respondent, names of the witnesses, date, place and time of occurrence were not mentioned and that the said copy of the complaint was also not furnished to her. She has also denied all the charges levelled against her by a letter dated 28.02.2002 addressed to both the respondents.
(vi) Thereafter, the 2nd respondent herein issued another notice dated 08.03.2002 to the petitioner along with a questionnaire to reply within 7 days. On receipt of the said letter, the petitioner submitted a fresh representation to the respondents herein to conduct enquiry if any, by other arms of the Department. The said reply of the petitioner was not agreeable by the 2nd respondent with regard to conduct of the enquiry and fixed the date for conduct of the enquiry on 12.04.2002 at 3.00 pm. On receipt of the letter of the 2nd respondent dated 04.04.2002, the petitioner in her representation dated 09.04.2002 requested the 1st respondent to conduct enquiry by other arms of the Department and also explained the reason for seeking such request. The 1st respondent did not reply to the representations of the petitioner including the representation dated 09.04.2002. However, the petitioner went to the office of the 2nd respondent on 12.04.2002 to protest with regard to the conduct of enquiry, since bias petition was pending; but, on the said date, till 5.30 p.m., no such enquiry was conducted by the 2nd respondent and hence she returned to her home.
(vii) According to the petitioner, the 2nd respondent herein ought to have issued a second show cause notice to her along with the enquiry report for explanation/written statement by her; but, without doing so, the 2nd respondent has straight away removed her from service by an order dated 06.05.2002 in total violation of the principles of natural justice. Aggrieved by the orders of the 1st and 2nd respondents and having no other alternative, the petitioner is before this court.
3. The respondents have filed counter affidavit and they have stated as follows:
(i) The staff of Primary Health Centre, Keelperamanallur in their letter dated 01.10.2001 addressed to the District Collector, Kancheepuram preferred a complaint against the petitioner stating that the petitioner is attending office only on Immunisation Day (i.e. Wednesday) for the past three years, which has resulted in additional work load to them. Further, the petitioner in her letter addressed to the staff of Primary Health Centre, Keelperamanallur had threatened the staff not to report about her absence and further went to the Primary Health Centre with her husband and threatened them of dire consequences.
(ii) The 2nd respondent, Deputy Director of Health Services, Kancheepuram conducted a personal inquiry on 06.10.2001 with the staff of Primary Health Centre, Keelperamanallur. During the inquiry, the staff have complained that the petitioner is not regular in her duty, which has resulted in additional work load to them. Based on the complaint dated 01.10.2001 preferred by the staff of Primary Health Centre, Keelperamanallur and on the basis of the facts revealed by the staff during the inquiry on 06.10.2001, the 2nd respondent placed the petitioner under suspension vide proceedings dated 15.10.2001. Disciplinary action under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as 'Rules) was initiated by the 2nd respondent and a charge memo dated 12.01.2002 framing 3 charges was issued against the petitioner.
(iii) Further, the 2nd respondent in his letter dated 04.04.2002 informed the petitioner that the oral inquiry in the disciplinary case initiated against her is fixed on 12.04.2002 at 3.00pm and directed the petitioner to attend the inquiry without fail and also made clear that if the petitioner fails to attend the inquiry on 12.04.2002, the inquiry will be conducted ex-parte and final orders will be issued based on the available materials and records on file. The respondents would state that the petitioner did not attend the inquiry on 12.04.2002 and she also failed to inform the 2nd respondent of her inability to attend the inquiry on 12.04.2002.
(iv) The 2nd respondent conducted an ex-parte inquiry on 12.04.2002 in view of non-receipt of any representation from the petitioner regarding her ability or inability to attend the inquiry and drew an ex-parte inquiry report, wherein, he has held the three charges framed against the petitioner as proved. The 2nd respondent in his letter dated 16.04.2002 forwarded the ex-parte inquiry report to the petitioner and directed her to submit her further defence statement over the inquiry report; but, the petitioner failed to submit the same.
(v) According to the respondents, the 2nd respondent has provided reasonable opportunity to the petitioner at every stage of the Disciplinary case to submit her defence and to prove her innocence. But, the petitioner has miserably failed to utilise any of the opportunities provided to her at each stage of the disciplinary case. The 2nd respondent in his proceedings dated 06.05.2002, imposed the punishment of removal of the petitioner from service for the proven charges. Aggrieved by the said order, the petitioner preferred an appeal before the 1st respondent on 04.06.2002; the 1st respondent, after careful examination and consideration of the merits of the case, by proceedings dated 02.04.2003, rejected the appeal of the petitioner as devoid of merits.
(vi) It is the case of the respondents that the 2nd respondent placed the petitioner under suspension based on the complaints received from the staff of Primary Health Centre, Keelperamanallur and after proper inquiry held on 06.10.2001, disciplinary action under Rule 17(b) of the Rules was initiated against the petitioner by the 2nd respondent and a charge memo framing three charges was issued to the petitioner. The respondents would also state that the petitioner during her period of suspension ought to have produced a non-employment certificate and a certificate of proof stating that she is residing at the Headquarters fixed by the Disciplinary Authority in the suspension order, every month, to claim her eligible subsistence allowance during the period of suspension. Since the petitioner failed to submit the relevant certificates, she was not paid the subsistence allowance during her suspension period.
(vii) The respondents have also stated that the petitions preferred by the petitioner against the 2nd respondent and the disciplinary action initiated by the 2nd respondent on the petitioner are two different issues unrelated to each other. The complaint petition with the first respondent does not restrain the 2nd respondent to initiate disciplinary action against the petitioner for her administrative lapses, since the 2nd respondent is the immediate officer and disciplinary authority for the petitioner.
4. Heard Mr.R.Malaichamy, learned counsel for the petitioner and Mr.V.Viswanathan, learned Additional Government Pleader appearing for the respondents.
5. Learned counsel for the petitioner would contend that when there is a bias petition pending against the 2nd respondent, the 2nd respondent ought to have stayed the proceedings by himself till the disposal of the said petition or he could have continued the said enquiry after recording his reasons as to how it was unpracticable for him to entrust the matter to some other officer to conduct the oral enquiry; therefore, on this ground alone the impugned orders are liable to be quashed. He would further contend that the charge memo does not contain either the list of witnesses or copies of documents with specific particulars which formed the basis for framing the charges.
6. In support of his case, learned counsel for the petitioner has relied on the following :
(i) a decision of this court reported in 2007 Writ L.R. 27 (M.Jamalutheen vs. The Director of School Education, Chennai and others) "26. Therefore, the very presence of the President and the Correspondent of the School as members of the enquiry committee is attracting the doctrine of bias and specific allegation is levelled, against the 5th respondent. Thus, it is cleared that in this case both the President as well as the Correspondent who have some interest in the disciplinary matter have participated in the enquiry. Thereby, the very object of natural justice is defeated.
29. Therefore, the fifth respondent and the President of the Committee ought not to have been the Members of the Committee enquired into the allegations against the petitioner. On this ground alone, the impugned order is liable to be set aside."
(ii) a Supreme Court decision reported in AIR 1999 SC 1416 (Capt. M.Paul Anthony vs. Bharat Gold Mines Ltd. and another) :
"29. Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by "suspension syndrome" and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse which has often resulted in suspension. Suspension notwithstanding, non-payment of Subsistence Allowance is an inhuman act which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'Subsistence Allowance', so that the employee may sustain himself. ....
"An order of a suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. The real effect of suspension as explained by this court in Khem Chand vs. Union of India (AIR 1958 SC 300) is that he continues to be a member of the Government service but is not permitted to work and further during the period of suspension he is paid only some allowance generally called subsistence allowance - which is normally less than the salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that an order of suspension, unless the departmental inquiry is concluded within a reasonable time, affects a Government servant injuriously. The very expression 'subsistence allowance' has an undeniable penal significance. The dictionary meaning of the word 'subsist' as given in Shorter Oxford English Dictionary, Vol.II at p.2171 is "to remain alive as on food; to continue to exist". "Subsistence" means means of supporting life, especially a minimum livelihood." (Emphasis supplied)
33. Since in the instant case the appellant was not provided any Subsistence Allowance during the period of suspension and the adjournment prayed for by him on account of his illness, duly supported by medical certificates, was refused resulting in ex parte proceedings against him, we are of the opinion that the appellant has been punished in total violation of the principles of natural justice and he was literally not afforded any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of Subsistence Allowance, he could not undertake a journey to attend the disciplinary proceedings, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated."
7. On the other hand, learned Additional Government Pleader appearing for the respondents would submit that the 2nd respondent placed the petitioner under suspension based on a complaint dated 01.10.2001 preferred by the staff of Primary Health Centre, Keelperamanallur and also on the basis of the personal inquiry held on 06.10.2001 by the 2nd respondent with the concerned staff. He would also submit that the 2nd respondent has initiated disciplinary proceedings against the petitioner as per the provisions laid down in the Rules. It is his contention that since the petitioner has not furnished a non-employment certificate to the competent authority as per Rules, she has not been paid the subsistence allowance. According to him, non-payment of subsistence allowance to the petitioner cannot be ground to nullify the order of the 1st respondent.
8. A circumspection of the facts of this case would reveal that the petitioner was appointed as Multipurpose Health Worker and posted at Pudupettai Primary Health Centre by proceedings of the District Health Officer, Health Unit District, Kallakurichi, dated 21.12.1982. While the petitioner was working as Village Health Nurse at Keelperamanallur Primary Health Centre, she was placed under suspension by the 2nd respondent on 15.10.2001 and a charge memo containing three charges framed under Rule 17(b) of the Rules was issued to her, as detailed below:
"Charge I :
The petitioner is threatening the Primary Health Centre staff through letters and through her husband.
Charge II :
The petitioner has failed to participate and carry out the National Programme like T.B. Awareness Programme, School Children Health Programme Disease Prevention Campaign, Family Welfare Special Camps, Filarisis prevention campaign and weekly inspection of pregnant mothers.
Charge III :
The petitioner attends duty only on Immunisation Day (i.e.) Wednesday and abstains from work unauthorisedly often."
8a. Thereafter, the 2nd respondent by his letter dated 04.04.2002 informed the petitioner that an oral enquiry on the charges framed against her is fixed on 12.04.2002 at 3.00 pm and directed her to attend the enquiry and also made clear that if she fails to attend the enquiry on 12.04.2002, then the enquiry will be conducted ex parte and final orders will be passed. However, the petitioner did not attend the enquiry on the fixed date. She sent a representation to the 1st respondent alleging bias against the 2nd respondent. However, the 2nd respondent proceeded with the enquiry and all the three charges were held proved against the petitioner and exparte orders were passed. Thereafter, he forwarded the Enquiry Report to the petitioner and directed her to submit her further defence statement. There again, the petitioner failed to submit her explanation and the 2nd respondent passed a final order on 06.05.2002 imposing the punishment of removal from service for the charges proved. Thereafter, the petitioner preferred an appeal before the 1st respondent on 04.06.2002 and the said appeal was also rejected by the 1st respondent by his proceedings dated 02.04.2003. The orders passed by the 1st and 2nd respondents are under challenge in this writ petition.
9. In view of the above, the issue to be examined is, under what circumstances, the petitioner could not participate in the enquiry proceedings. For the cause of repetition, again it is to be seen that the petitioner had represented to the 1st respondent alleging bias against the 2nd respondent. Therefore, she could not attend the enquiry proceedings conducted by the 2nd respondent. But, the enquiry proceedings ended exparte in the absence of examination of any witnesses or other materials. The findings in the enquiry proceedings given by the disciplinary authority has also been accepted by the appellate authority, in toto.
10. The main contention raised by the petitioner in this case is that when there is a bias petition pending against the 2nd respondent, he ought not to have proceeded with the conduct of enquiry against her. In this regard, the petitioner raises a question as to how unpracticable it was for the 2nd respondent to entrust the matter to some other officer to conduct the oral enquiry. It is a settled proposition that when an allegation against the concerned authority is raised and a petition is made alleging bias, then unless the allegation made against that officer is rejected or proved otherwise, he cannot sit over in any of the proceedings deciding the issue; otherwise, it would amount to bias and the very object of natural justice would be defeated.
11. The 2nd respondent herein, who has issued charge memo against the petitioner is the person against whom the bias petition is pending. No one will be a judge in his own cause. The reason is that if a person against whom an allegation is made is an interested person, he cannot participate in the discussion or in any of the proceedings. In the case on hand, the 2nd respondent ought to have taken a decision either way when there is an allegation against him and a petition against him is pending before the 1st respondent. Therefore, I see force in the contention of the learned counsel for the petitioner that unless a bias petition is disposed of, the 2nd respondent is bound to decline from proceeding further in the matter.
12. In his submissions, the petitioner has stated that the Memorandum of charges does not contain the names of the witnesses and date, place and time of occurrence were not mentioned therein. It is a cardinal principle that the memorandum of charges would contain the nature of misconduct and therefore, the details of witnesses, date and place and time of occurrence are not mandatory. The petitioner had represented to the 1st respondent alleging bias against the 2nd respondent and hence, she did not attend the enquiry proceedings conducted by the 2nd respondent and the enquiry proceedings ended exparte in the absence of any witnesses or other materials. Therefore, this contention of the petitioner does not deserve any merit.
13. As regards non-payment of subsistence allowance, a cardinal principle has been laid down by the Supreme Court in number of rulings that even that amount is not paid, then the very object of paying the reduced salary to the employee during the period of suspension would be frustrated. At this juncture, it is worth referring to the relevant Rules and procedures, which are extracted thus :
"Fundamental Rules :
Rule 53(1) : A Government servant who is placed or deemed to have been placed or continues to be under suspension shall be entitled to the following payments, namely :-
(a) Subsistence allowance at an amount equal to half of the pay last drawn by the Government servant and in addition dearness allowance, if admissible on the basis of half of the pay last drawn.
(G.O.Ms.No.180, Personnel and Administrative Reforms Department, dated 4th March 1983) Provided that where the period of suspension exceeds six months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first six months.
(2) No payment under sub-rule (1) shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation:
Provided that in the case of a Government servant dismissed, removed or compulsorily retired from service, who is deemed to have been placed, or to continue to be under suspension from the date of such dismissal or removal or compulsory retirement under clauses (3) and (4) of rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, and who fails to furnish such a certificate for any period or periods during which he is deemed to have been placed or to continue to be under suspension, he shall be entitled to subsistence allowance and other allowances equal to the amount by which his earnings during such period or periods, as the case may be falls short of the amount of subsistence allowance and other allowances, that would otherwise be admissible to him but when the subsistence and other allowances admissible to him are equal to or less than the amount earned by him, nothing in this proviso shall apply to him."
Rule 17 of the Handbook on Disciplinary Procedures :
Subsistence Allowance during suspension : A Government servant under suspension is entitled to an allowance called subsistence allowance under the provisions of rule 53 of the Fundamental Rules. It will be paid upto the first six months of the period of suspension, at an amount equal to half of the pay last drawn by the Government Servant and in addition dearness allowance, if admissible on the basis of half of the pay last drawn. The competent authority may vary the amount of subsistence allowance for any period exceeding the first six months according to the provisions in rule 53 of the Fundamental Rules. A Government servant who engages himself in any other employment, business, profession or vocation while under suspension will not be entitled to any payment of subsistence allowance. He is required to furnish a certificate to the competent authority to this effect."
14. In the instant case, the petitioner was not provided any Subsistence allowance during the period of suspension in spite of her representation to the 2nd respondent as regards her claim. It is also seen that though there is a direction in the order of the 1st respondent dated 15.10.2001 for payment of subsistence allowance to the petitioner, no such allowance was paid to her till she was removed from service. Therefore, the petitioner has been punished in total violation of the principles of natural justice. The enquiry was set exparte while her representation as well as the bias petition were pending with the 1st respondent; therefore, she did not attend the enquiry and hence, she was not given an opportunity of hearing. Moreover, on account of her penury occasioned by non-payment of subsistence allowance, she could not attend the disciplinary proceedings and hence, it has ended exparte. Therefore, the findings recorded by the Inquiry Officer at such proceedings, which were held ex parte, stand vitiated.
15. For the reasons stated above that there is bias and as well as there is non-payment of subsistence allowance to the petitioner and also taking note of the fact that the enquiry proceedings against the petitioner is an exparte one, this court is of the view that the impugned orders passed by the 1st and 2nd respondents on 02.04.2003 and 06.05.2002, respectively, suffer from legal infirmity. Accordingly, the orders passed by the 1st and 2nd respondents are set aside remanding the matter to the 1st respondent to decide the bias petition pending against the 2nd respondent within a period of four (4) weeks from the date of receipt of a copy of this order and thereafter entrust the matter to the competent authority/appropriate officer to proceed with the enquiry proceedings and complete the same within a three (3) months.
The writ petition stands allowed with the above direction. No costs.
abe To :
1. The Director of Public Health and Preventive Medicine, Chennai 600 006.
2. The Deputy Director of Health Services, Public and Preventive Medicine Department, Kancheepuram District, Kancheepuram