Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 846 (MAD)

Kausalya v. The District Health Officer & Others

2003-06-19

M.THANIKACHALAM, V.S.SIRPURKAR

body2003
Judgment :- V.S. SIRPURKAR, J. In this writ petition, the petitioner challenges the order passed by the Tamil Nadu State Administrative Tribunal (in short ‘the Tribunal’), dismissing her original application wherein she had challenged the order passed by the second respondent dated 30-7-1991. By the instant order, the petitioner was found guilty of all the five charges framed against her and was ordered to be removed from the service with effect from the date of issue of the order. This matter has some peculiar facts. 2. The petitioner was working as Health Visitor. She was suspended and was served with a charge-memo for five charges in proceedings RC No.3547/87. She submitted the explanation. The District Health Officer, who was her disciplinary authority, passed the final order on the basis of that explanation on 8-8-1988 and chose only to issue a warning to the petitioner. 3. It seems that thereafter the second respondent Director, exercising his suo motu powers, has chosen to review the earlier order and passed the order dated 30-7-1991, enhancing the punishment already granted by the District Health Officer, first respondent. Undoubtedly, before this a show cause notice came to be issued to her on 25-4-1990 in which the petitioner was specifically asked to give reasons as to why a major penalty of removal from service should not be ordered. 4. We were taken through the show cause notice dated 25-4-1990, which suggests that the case was taken up for review by the second respondent Director as per Rule 36 of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, hereinafter referred to as ‘the Rules’, and in pursuance of that the orders of the District Health Officer issuing a warning were cancelled and that thereafter, the Regional Deputy Director of Public Health and Preventive Medicine was appointed as the Enquiry Officer, who conducted the enquiry and had submitted his report, suggesting therein that all the five charges framed against the petitioner stood proved. For the sake of facts, we would quote those five charges: 1.“She is propagating against the policy of Government. 2.She has violated the Government Servants Conduct Rules (i.e. Rule 21) by attending to her duties after consuming liquor. 3.She has used disrespectful words towards her superior officers and disobeyed the orders of the superior officers. 4.She is indulging in indiscipline activities. 2.She has violated the Government Servants Conduct Rules (i.e. Rule 21) by attending to her duties after consuming liquor. 3.She has used disrespectful words towards her superior officers and disobeyed the orders of the superior officers. 4.She is indulging in indiscipline activities. 5.She is misusing her post for her welfare.” By that show cause notice, the Director of Public Health sought an explanation of the petitioner to show cause as to why the major penalty of removal from service should not be inflicted. After the explanation was submitted, the impugned order came to be passed on 30-7-1999. The Tribunal has refused to entertain the original application as it found that the proceedings were in order and the punishment was proper. 5. Mainly two grounds were raised before the Tribunal. They were: (i) that the powers under Rule 36 could be exercised only within six months and in this case, they were exercised much later than six months; and (ii) that the concerned authority was both the Head of the Department as also the appellate authority and as such, the concerned authority could not have exercised the review powers much less beyond the period of six months. The Tribunal has found against the petitioner on both counts and has chosen to dismiss the original application, necessitating the present writ petition. 6. Learned counsel for the petitioner pointed out that firstly the Director, who has passed the impugned order, is both the Head of the Department as also the appellate authority against the original order passed by the District Health Officer. Learned counsel, therefore, argues that properly reading the language of Rule 36 and more particularly the proviso, the whole action in initiating the review proceedings was without jurisdiction. He points out that the Tribunal has not appreciated the mandatory language of the second proviso to Rule 36. Learned counsel further argues that though the Head of the Department could initiate the review action at any time, meaning beyond the six months’ time, the other condition (ii) apparent in the second proviso was breached in this matter. As such, though in the present case, the second respondent was the Head of the Department, he could not have initiated the action for review. Since the initiation of the action of review itself was incorrect, the further proceedings must go and eventually, the order of removal from service would be rendered illegal. As such, though in the present case, the second respondent was the Head of the Department, he could not have initiated the action for review. Since the initiation of the action of review itself was incorrect, the further proceedings must go and eventually, the order of removal from service would be rendered illegal. Learned counsel very heavily relied on the reported decision of the Division Bench of this Court in P. Sabesan v. State of Tamil Nadu (1984 WLR 557). 7. As against this, the learned Government Pleader tried to justify the action by suggesting that in this case there was no question of any limitation as the opening part of Rule 36, as it stood then, does provide that the Government and the Head of Department can review any penalty or proceeding and have ample powers thereafter to deal with them in the manner provided in the rules. According to the learned Government Pleader, therefore, there was nothing wrong if the action of review as initiated even beyond the period of six months since it was done by the Head of the Department. 8. At the Bar, learned Government Pleader very candidly and fairly admitted that the Director who passed the impugned order is also the appellate authority against the orders passed by the District Health Officer. It is also an admitted position that no notice was given to the petitioner before deciding to initiate the action. We would have to, therefore, proceed on this factual basis. It will be essential to quote the relevant portion of Rule 36, as it stood then. The relevant portion is as under: “36. It is also an admitted position that no notice was given to the petitioner before deciding to initiate the action. We would have to, therefore, proceed on this factual basis. It will be essential to quote the relevant portion of Rule 36, as it stood then. The relevant portion is as under: “36. (1) Nothwithstanding anything contained in these rules- (i) the State Government; or (ii) the head of the department directly under the State Government, in the case of a Government servant serving in a department or office under the control of such head of a department, or departments, or (iii) the appellate authority, within six months of the date of the order proposed to be reviewed, or (iv) any other authority specified in this behalf by the State Government by a general or special order, and within such time as may be prescribed in such general or special order; may at any time, either on their or its own motion or otherwise call for the records of any inquiry and review any order made under these rules, after consultation with the Tamil Nadu Public Service Commission, where such consultation is necessary and may (a) confirm, modify or set aside the order; or (b) confirm, reduce, enhance or set aside the penalty imposed by the orders, or impose any penalty where no penalty has been imposed; or (c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or (d) pass such other orders as it may deem fit: Provided that no order imposing or enhancing any penalty shall be made by any reviewing authority unless the Government Servant concerned has been given a reasonable opportunity of making representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (iv), (v), (c), (vi), (vii) and (viii) of rule 8 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses, no such penalty shall be imposed except after an inquiry in the manner laid down in sub-rule (b) of rule 17 and except after consultation with the Tamil Nadu Public Service Commission where such consultation is necessary: Provided further that no power of review shall be exercised by the head of a department, unless- (i) the authority which made the order in appeal or (ii) the authority to which an appeal would be, where no appeal has been preferred is subordinate to him. (2) No proceeding for review shall be commenced until after- (i) the expiry of the period of imitation for an appeal, or (ii) the disposal of the appeal, where any such appeal has been preferred.” It is, therefore, clear that there lies ample powers in the Government, Head of the Department and the appellate authority or any other authority specially created for that purpose to enhance the penalty in keeping with the modality further provided in the rules. In case of appellate authority, however, there is a limitation of six months for exercising the power of review, which time limit is not applicable to the powers being used by the State Government or the Head of Department or any other authority specified in that behalf. 9. In this case, there is no problem regarding the fact that the Head of Department and the appellate authority were one and the same person. It is also not disputed that after the penalty of warning was given to the petitioner by the District Health Officer, the petitioner did not file any appeal. The question is, however, whether the action was rightly initiated. The second proviso, however, creates two fetters. It suggests in a very positive language that the power of review cannot be exercised unless the authority which made the order in appeal or the authority to which the appeal could be made are subordinate to such Head of Department. Now it is clear and an admitted position that in this case, there was no appeal made. So, the question of the application of first clause after proviso does not apply. The second clause, however, applies with all its force. It suggests that where no appeal has been preferred the authority to which ordinarily the appeal could have been preferred should also be subordinate to the Head of Department and that is where precisely the defect has set in. The Head of Department who has initiated the action is himself an appellate authority. As per the second clause of the proviso, the Head of Department could never have exercised the power unless the appellate authority to whom the appeal could be filed but has actually not been made was subordinate to such a Head of Department. The Head of Department who has initiated the action is himself an appellate authority. As per the second clause of the proviso, the Head of Department could never have exercised the power unless the appellate authority to whom the appeal could be filed but has actually not been made was subordinate to such a Head of Department. Now, unfortunately for the Government, the Head of Department as well as the appellate authority are one and the same officers and it can never be said, therefore, that the appellate authority, i.e. the Director is subordinate to himself. In that view, the action of review could not have even been initiated let apart proceeded further and precisely that aspect which has been missed by the Tribunal. The Tribunal has gone, unfortunately, only on the broad reading of the rule and has held that since the action of review has been taken by the Head of Department, there would be no question of any limitation of six months. It is perfectly alright and there can be no dispute that the Head of Department has the power to initiate the action even after the six months. Even the learned counsel for the petitioner does not dispute that. However, the second aspect of the appellate authority being required to be a subordinate officer of the Director of the Head of Department is obviously breached in this case and, therefore, it will have to be held that the action initiating the review is bad and without any jurisdiction. 10. Same view has been taken by the Division Bench of this Court in Sabesan case, cited supra. There, the learned Judges were examining the language of Rule 15-A of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules. The language is absolutely identical. The Division Bench, in paragraph 3, observed as follows: “The proviso says that no power of review shall be exercised by the Head of the Department unless the appellate authority, which had passed the appellate order or the authority to which an appeal would be preferred against the original order is subordinate to him. The second respondent herein is the Head of the Department and he also happened to be the appellate authority. The second respondent herein is the Head of the Department and he also happened to be the appellate authority. As the appellate authority in this case is not subordinate to the Head of the Department the former cannot exercise the power of review under the said proviso.” We respectfully agree with this decision which is binding on us being a previous decision of the co-ordinate Bench. 11. In that view, the petition must succeed. The order of the Tribunal is set aside. The original application is also directed to be allowed. The petitioner shall be reinstated with all the benefits. We, however, make it clear that the Government could still have the power to proceed under Rule 36, if it so chooses.