The petitioner challenges the charge memorandum dated 22.04.2008 issued to him by the 2nd respondent; and the letter dated 10.07.2008 whereby his request for promotion as Director of Public Health and Preventive Medicine was rejected by the 1st respondent and also seeks a consequential direction to promote him as Director of Public Health and Preventive Medicine.
2. After recruitment through the Tamil Nadu Public Service Commission, the petitioner joined the Government service on 20.04.1983 as Municipal Health Officer. In the year 1994, he was promoted as Deputy Director of Public Health. After 12 years of his unblemished service, he was further promoted as Joint Director of Public Health and Preventive Medicine in the year 2006. He was again promoted as Additional Director of Public Health and Preventive Medicine with effect from 29.01.2008. Now, he is serving as Additional Director, Institute of Community Medicine, Madras Medical College, Chennai.
3. The back ground of the case of the petitioner is that while he was in service as Deputy Director, the 2nd respondent has initiated disciplinary proceeding against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules in Memo No.5406/DA/96/S1, dated 20.04.1996 and the same ultimately resulted in the order of penalty of stoppage of increment for six months without cumulative effect by order in G.O.(D) No.1235, Health and Family Welfare Department, dated 30.08.2001. Aggrieved by the said order of punishment, he filed a review petition to the 1st respondent and based on the advise of the TNPSC, the punishment was set aside, however, a de nova enquiry was ordered by the 1st respondent in G.O.(D) No.890, Health and Family Welfare Department, dated 19.06.2003. Since there was more than 10 years of delay in finalising the disciplinary proceedings and since his promotion as Joint Director was deferred on account of the pendency of the disciplinary proceeding, he was constrained to file W.P.No.46434 of 2006. By order dated 04.12.2006, this Court issued a direction to the 1st respondent to finalise the disciplinary proceeding within six months from the date of order and in the mean time consider the petitioner for promotion as Joint Director, if he is otherwise qualified, subject to the result of the disciplinary proceedings, within a period of four weeks. Pursuant to the order of this Court, he was promoted as Joint Director by order in G.O.(2D) No.9, Health and Family Welfare Department, dated 05.02.2007. Ultimately, the 1st respondent dropped the charges levelled against him by order in G.O.(D).863, Health and Family Welfare Department, dated 03.07.2008.
4. It is the further case of the petitioner that since the charges levelled against him had already been dropped, the Government issued an order in G.O.(D).No.1435, Health and Family Department, dated 23.12.2008 directing the name of the petitioner be included in the panel for the year 2005-2006 for promotion as Joint Director and deemed to have been regularly promoted as Joint Director of Public Health and Preventive Medicine with effect from 01.06.2006 and his name be included in the panel dated 22.01.2008 approved in G.O.(2D), No.6, Health and Family Welfare Department, for the year 2007-08 for promotion as Additional Director of Public Health and Preventive Medicine and deemed to have been promoted regularly with effect from 29.01.2008, the date on which his immediate junior had been promoted.
5. Even while he was the senior most person eligible for promotion as Director of Public Health and Preventive Medicine and was on the verge of promotion, in order to defer his further promotion as Director, the 3rd respondent, the then Additional Director, who was his junior in the cadre and was in the race of promotion as Director, in connivance with the 4th respondent, the then Director and who was making an attempt to get his services extended beyond the age of his superannuation, submitted a preliminary enquiry report causing intimation of disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (D & A) Rules. The 4th respondent, the then Director accordingly initiated disciplinary proceedings with a mala fide intention and issued the impugned charge memorandum dated 22.04.2008 thereby depriving of his promotion as Director. Thus, he was constrained to file W.P.No.12774 of 2008 seeking to quash the charge memo dated 22.04.2008 and for consequential direction for promotion as Director. This court, by order dated 27.05.2008 directed the 1st respondent / Government to dispose of the representation of the petitioner dated 12.05.2008 on merits and in accordance with law taking into account Rule 39(d) of the General Rules of Tamil Nadu State and Subordinate Service Rules within a period of four weeks.
6. The grievance of the petitioner is that without properly considering his representation dated 12.05.2008 and adverting to the contentions put forth in the representation, the 1st respondent rejected his request for promotion as Director of Public Health and Preventive Medicine. Hence, this writ petition.
7. There are two charges in respect of bogus claim levelled against the petitioner in the impugned charge memorandum dated 22.04.2008 alleging that while he was working as Deputy Director of Health Services, Villupuram, (ii) during the year 2004 he had incurred expenditure to the tune of Rs.12,500/- @ Rs.1000/- per day for 5 days to the 25 Medical Officers of the Government Primary Health Centres of Villupuram and Kallakurichi HUD for having participated in the National Surveillance for Prevention of Communicable Diseases Training , whereas it was reported that only Rs.100/- has been paid instead of Rs.500/- to each Medical Officer for 5 days, thereby actually incurred a total sum of Rs.2,500/- only and thus he has made a bogus claim for Rs.10,000/- in the conduct of NSPCD Training in Villpuram ; and (ii) during the year 2004 he had claimed a sum of Rs.2,400/- towards remuneration for guest lectures given in the NSPCD Training for Medical Officers of Villupuram and Kallakurichi HUDs @ Rs.200/- per hour for 12 hours for having taken 12 classes from 08.03.2004 to 11.03.2004, whereas it was found that he had not taken classes actually for the said duration and thus he had made another bogus claim for Rs.2,400/- in the conduct of NSPCD Training in Villupuram.
8. According to the petitioner he is going to retire in the month of December 2009 and only in order to defer his promotion, the 3rd respondent, who was very much keen in getting his service extended even after his superannuation, in connivance with the 4th respondent, who was junior to the petitioner in the cadre of Joint Director and was in the race of promotion as Director, has issued charge memorandum levelling baseless charges on the basis of the report of the 3rd respondent.
9. The learned counsel appearing for the petitioner attacked the charge memorandum on the following grounds:
Firstly, impugned charge memorandum has been issued without any basis with a malafide intention in order to defer the promotion due to the petitioner by the 4th respondent the then Director, who was interested in getting his service extended even after his superannuation, with the connivance of the 3rd respondent, who was the then Additional Director and junior of the petitioner in the cadre of Joint Director and also was in race of promotion as Director. No witness has been cited in the list annexed to the charge memorandum. Despite repeated requests the relevant documents sought for by the petitioners has not been furnished and the petitioner had to approach the State Information Commission for the purpose of getting those documents to submit his effective explanation. The delay in furnishing the relevant documents to the petitioner caused much prejudice in submitting his effective explanation to the charges levelled against him.
Despite the directions of this Court by order dated 27.05.2008 made in W.P.No.12774 of 2008, the representation of the petitioner dated 12.05.2008 was not properly considered by the 1st respondent and the petitioner was denied promotion by the impugned letter dated 10.07.2008 on two grounds viz., (1) charges under Section 17(b) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules are pending against the petitioner and (2) on the date of rejection of the request of the petitioner for promotion as Director, he was only a Joint Director and not Additional Director.
Secondly, even though the petitioner was Joint Director when the impugned order dated 10.07.2008 was issued, later on he has been given promotion retrospectively as Additional Director with effect from 29.01.2008 and so in the changed circumstances, he is entitled to be promoted as Director being the senior most in the cadre of Additional Director.
Thirdly, the 1st respondent while passing the impugned letter dated 10.07.2008 had not considered the fact that earlier when the petitioner approached this Court by way of W.P.No.46434 of 2006 seeking to set aside the earlier charge memorandum dated 20.04.1996 and for consequential relief of promotion as Joint Director, this Court was pleased to give a direction on 04.12.2006 to the respondents therein to finalise the disciplinary proceedings with six months and in the mean time to consider the claim of the petitioner for promotion as Joint Director, if otherwise he is qualified, subject to the result of the earlier disciplinary proceedings within a period of four weeks. Accordingly, the petitioner was promoted as Joint Director by G.O.(2D) No.9, Health and Family Welfare Department, dated 05.02.2007. Thereupon, the Government by order in G.O.(D) No.863, Health and Family Welfare Department, dated 03.07.2008 dropped the earlier charges levelled against the petitioner. The Government, having considered the dropping of earlier charge memorandum dated 20.04.1996 and the impugned charge memorandum dated 22.04.2008 and upon considering the request of the Director of the Public Health and Preventive Medicine, by G.O.(D) No.1435 Health and Family Welfare Department, dated 23.12.2008 ordered that the name of the petitioner was to be included in the panel for the year 2005-006 for promotion as Joint Director and deemed to have been regularly promoted as Joint Director of Public Health and Preventive Medicine with effect from 01.06.2006 and also ordered the name of the petitioner to be included in the panel dated 22.01.2008 for the year 2007-2008 for promotion as Additional Director of Public Health and Preventive Medicine and deemed to have been promoted regularly with effect from 29.01.2008, the date on which the immediate junior of the petitioner has been promoted.
10. While concluding his submissions, the learned counsel appearing for the petitioner has drawn the attention of this Court that that only after having considered the charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules levelled against the petitioner vide charge memorandum dated 22.04.2008, the Government passed G.O.(D) 1435, Health and Family Welfare (12) Department, dated 23.12.2008 giving deemed promotion to the petitioner as Additional Director regularly with effect from 29.01.2008 on which date, his immediate Junior Dr.R.Sornakanthimathi joined duty as Additional Director of Public Health and Preventive Medicine. In view of the subsequent development, the 2nd ground for rejection of the representation of the petitioner to consider his name for promotion as Director that on that date he was not Additional Director and he was only a Joint Director and as such his name was not considered in the panel for the post of Director cannot be sustained.
11. Further, the charge memorandum which has been issued without showing any name of the witness to substantiate the charges at the tail end of his retirement proves only the mala fide intention of the respondents in order to defer his further promotions. Even after issuing charge memorandum, the respondents 2 to 4 have deliberately withheld the relevant documents and thereby prevented the petitioner from submitting his effective explanation and the petitioner had to approach the State Information Commission for getting those documents to defend his charges effectively. Therefore, the impugned charge memorandum is liable to be quashed on the ground that the charges are baseless, belated and motivated. In support of his submissions, the learned counsel appearing for the petitioner relied on a judgement in P.V.Mahadevan v. The Managing Director, Tamil Nadu Housing Board 2005 (4) CTC 403 wherein the Hon'ble Supreme Court while dealing with the matter involving inordinate delay in initiating the disciplinary proceedings for about 10 years has held thus:
" 14. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher Government Official under charges of corruption and dispute integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary proceedings against a government employee should, therefore, be avoid not only in the interest of the Government employee, but in the public interest and also in the interest of inspiring confidence in the minds of the Government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer."
12. Per contra , the learned Special Government Pleader (Education) appearing for the respondents 1,2 and 3 submitted that the respondents were right in issuing the second charge memorandum dated 22.04.2008. Only upon the report of the Joint Director to the effect that the petitioner while he was working as Deputy Director of Health Services, Villupuram made bogus claims, a charge memorandum was issued. The petitioner only protracted the proceedings without submitting his explanation to the charges. 13. The learned counsel appearing for the 3rd respondent submitted that the 3rd respondent was asked to conduct a discreet enquiry and despite summon the petitioner did not appear for the enquiry and therefore on completion of preliminary enquiry, he filed his report to the disciplinary authority, and in turn the disciplinary authority issued the impugned charge memorandum and there is no other role played by the 3rd respondent as alleged by the petitioner.
14. I have considered the rival submissions and also perused the records.
15. Admittedly, the petitioner is going to retire by December 2009. He is now working as Additional Director. Even though the impugned order dated 10.07.2008 was passed by the 1st respondent, when he was a Joint Director later on the petitioner has been given promotion retrospectively as Additional Director with effect from 29.01.2008 and now the petitioner is entitled to be promoted as Director being the senior most in the cadre of Additional Director. The only hurdle for promotion is the pendency of charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. The charges relate to bogus claim. According to the enquiry report of the Joint Director of Public Health and Preventive Medicine (PFA), the petitioner misused the fund allotted and made bogus claims to the tune of Rs.10,000/- in the conduct of Training Programme in the year 2004. For the misconduct committed in the year 2004, the Director issued the impugned charge memorandum in the year 2008. The Director of Public Health and Preventive Medicine took almost four years in initiating the departmental proceedings against the petitioner knowing fully well that the petitioner is on the verge of promotion as Additional Director. It should be noticed that after having dropped the earlier charges levelled against the petitioner in the year 1996, the Government by order in G.O.No.1435, Health and Family Welfare Department, dated 23.12.2008 directed as follows:-
"4.The Government have examined the proposal of the Director of Public Health and Preventive Medicine and have decided to accept it. They accordingly order that the name of the Dr.G.Ravivarman be included in the regular panel approved for the post of Joint Director of Public Health and Preventive Medicine for the year 2005-2006 approved in the Government Order first read above as Sl.No.2(a) and Dr.G.Ravivarman be deemed to have been promoted as Joint Director of Public Health and Preventive Medicine regularly w.e.f. 01.06.2006 on which date his immediate Junior Dr.R.Sornakanthimathi has joined duty as Joint Director of Public Health and Preventive Medicine. The Government also order that the name of Dr.G.Ravarman be included in the panel approved in G.O.2(D) NO.6, Health and Family Welfare Department, dated 22.01.2008 for the post of Additional Director of Public Health and Preventive Medicine for the year 2007-2008 as Sl.No.1 above his immediate junior Dr.r.Sornakanthimathi and Dr.R.Sornakanthimathi Sl.No.1 in the said panel be renumbered as Sl.No.1(a) and Dr.G.Ravivarman is deemed to have been promoted as Additional Director of Public Health and Preventive Medicine regularly w.e.f. 29.01.2008 on which date, his immediate junior Dr.R.Sornakanthimathi joined duty as Additional Director of Public Health and Preventive Medicine."
16. Admittedly, this order of promotion was passed when a charge memo under rule 17(b) dated 22.04.2008 was pending against the petitioner. Now let me see what is that charge memo pending now, as seen from the Annexure IV to the charge memorandum, there is no witness cited in support of the charges levelled against the petitioner, nor there is a single document shown in the charge memo in support of the same. The statement of allegation in support of the charges framed against the petitioner is also vague about the alleged misconduct. When there is no statement of any witness or any document to disclose the alleged misconduct of the petitioner, the charge memo cannot sustain any legal scrutiny. According to the petitioner, despite repeated requests made to the Director, the documents listed in Annexure III to the charge memorandum has not been furnished to him and thereby he was prevented from submitting his effective explanation in time and he had to approach the State Information Commission to obtain those documents. Further, despite of the directions of this Court dated 27.05.2008 in W.P.No.12774 of 2008, the respondents has not chosen to complete the enquiry within the time frame and protracted the proceedings for about 1 years. Hence, the petitioner was constrained to approach this Court by way of present writ petition. Even now there is no progress shown by the respondents in conducting departmental enquiry. Earlier, when the petitioner was working as Deputy Director he was denied promotion on the ground that there was a charge pending against him and the petitioner had to approach this Court for promotion as Joint Director. Subsequently, when he was promoted as Joint Director pursuant to the order of this Court and was in the verge of promotion as Additional Director, he was issued with yet another charge memorandum on 22.04.2008 alleging misconduct of bogus claims. Things stood so, even after knowing very well the pendency of yet another charge memorandum, the Government on 03.07.2008 dropped the earlier charges and by order dated 23.12.2008 the Government has given deemed promotion to the petitioner as Additional Director retrospectively with effect from 29.01.2008. When the Government has passed an order dated 23.12.2008 by giving deemed promotion from Joint Director to Additional Director, there was a pendency of 17(b) charge memo. During the pendency of charge memo when the Government has granted deemed promotion from Joint Director to Additional Director, denial of further promotional post of Director of Preventive Medicine is not sustainable.
17. On going through statement of facts and the charge memorandum, the same do not disclose the alleged misconduct. As seen from the records relating to the disciplinary proceedings produced by the learned Special Government Pleader, none of the medical officers, who were given training on NSPCD, spoke about the alleged misconduct and bogus claims of the delinquent officer. The records clearly reveal that charges levelled against the delinquent officer are vague and without any incriminating evidence. This would further indicate the mala fide intention of the respondents 3 and 4 in deferring the promotion of the petitioner as Director as contended by the petitioner. There is not only a delay of 4 years in initiating the disciplinary proceedings but also there is a delay of more than 1 year in completing the disciplinary proceedings despite direction from this Court on 27.05.2008 to complete the enquiry within the time frame. The respondents, particularly the respondents 3 and 4, who were then holding the office of the Director of Public Health Preventive Medicine connived with each other and purposely refused to furnish the documents sought for by the petitioner and the petitioner had to approach the State Information Commission by way of RTI Act for getting those documents. As per the directions of the State Information Commission, the petitioner was furnished copies of the relevant documents only on 03.08.2009.
18. As rightly pointed out by the learned counsel appearing for the petitioner and in the light of the judgement in P.V.Mahadevan's case cited supra, the protracted disciplinary proceeding cannot be allowed to proceed further and the impugned charge memorandum is liable to be quashed for the reasons (i) that the statement of allegations and the charge memorandum are vague and there is no reference about the fact that who made complaint and a vague allegation alone is found place in the statement of allegation and charge memorandum that there were complaint from Medical Officers of Villupuram Health Unit District against the petitioner regarding the misconduct of bogus claim and the report of the enquiry officer, the then Joint Director, who is the 4th respondent herein was not found on any incriminating evidence; (ii) that the 3rd respondent Dr.S.Elango is the then Additional Director of Public health who is petitioner's Junior waiting in the race for promotion to the post of Director of public health in connivance with the 4th respondent herein the then Director of public health who also attempted to get extension of service beyond the age of superannuation, have jointly devised a plan to defer the petitioner from getting the promotional post of Director of Public health by issuing very vague charge without any basis. Since the petitioner is admittedly going to retire by December 2009 if the Disciplinary Proceedings is allowed to be proceeded with further in view of short distance of time, the same would prove prejudicial to the petitioner. Therefore, this court is inclined to allow the writ petition by setting aside the charge memo holding the same is vague and motivated one.
19. In the result, the writ petition is allowed; charge memo in R.No.108125/DA/04/S1, dated 22.04.2008 of the 2nd respondent and the Letter No.24489/L2/2008-3, dated 10.07.2008 of the 1st respondent / Government are quashed; and the 1st respondent is directed to include the name of the petitioner in the appropriate place in the panel for promotion as Director of Public Health and Preventive Medicine for the year 2007-2008 as issued by the 1st respondent in G.O.(2D) No.06, Health and Family Welfare (L2) Department, dated 22.01.2008 and promote him as such with retrospective effect from the date of promotion of the 3rd respondent. The said exercise shall be completed within two weeks from the date of receipt of a copy of this order or on production of the same by the petitioner. No cost. Consequently, connected MPs are closed.
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1.The Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai 600 009.
2.The Director of Public Health and Preventive Medicine, Chennai 600 006