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2012 DIGILAW 1445 (MAD)

A. Chinnadurai v. State of Tamil Nadu

2012-03-21

D.HARIPARANTHAMAN

body2012
Judgment :- Common Order 1. In both the writ petitions, the petitioner and the respondent are same and the issues involved also are common. Hence, both the writ petitions are taken up together for final disposal. 2. The petitioner passed M.B.B.S. in the year 1975. He was selected as Assistant Medical Officer through the Tamil Nadu Public Service Commission and was appointed in Government Leprosy Control Unit, Melur, Madurai District on 04.04.1979. During 1981-1983, the petitioner underwent P.G.Diploma in Orthopaedics at Madurai Medical College. During 1984-1985, he passed M.S. Orthopaedics. In the meantime, during 1983, the petitioner was posted as Assistant Surgeon at the Government Primary Health Centre, Poovanthi Village, Sivagangai District. Thereafter, during 1989, he was posted as Assistant Surgeon at the Government Hospital, Melur, Madurai District. During April 1990, he was posted as Casualty Medical Officer at the Government Rajaji Hospital, Madurai, which is attached to the Medical College. He was appointed as Tutor and Assistant Professor of Orthopaedics at Government Rajaji Hospital, Madurai in June 1991. 3. While the Government Hospitals attached with the Medical Colleges are under the control of Director of Medical Education, the other Government Hospitals are under the control of Director of Medical and Rural Health Services. 4. According to the petitioner, one Dr.Rajappa, who was the Assistant Professor of Vascular Surgery, had running battle with Dr.Satyavan, Professor and Head of the Department of Surgery, Government Rajaji Hospital, Madurai and there was also a vertical split in the Surgery Department of the said Hospital and the Staff and Doctors were identified with the respective groups. Dr.Satyavan was the Teacher of the petitioner and he was identified as belonging to his group. Later, Dr.Rajappa became the Dean and subsequently, he became the Director of Medical Education. He was instrumental in the transfer of petitioner in May 1995 from teaching line to the nonteaching line. That is, the petitioner was transferred from Madurai Medical College, Madurai to the Government Hospital at Srivilliputhur. He was relieved from Madurai Medical College, Madurai on 31.05.1995. 5. According to the petitioner, he was already suffering from joint / knee pain and his transfer from teaching line to non-teaching line aggravated his health condition. Added to that, his father was ill and underwent heart surgery and his own sister was also seriously ill and subsequently died. His wife was also pregnant at that time. 5. According to the petitioner, he was already suffering from joint / knee pain and his transfer from teaching line to non-teaching line aggravated his health condition. Added to that, his father was ill and underwent heart surgery and his own sister was also seriously ill and subsequently died. His wife was also pregnant at that time. In these circumstances, the petitioner applied for medical leave from 29.05.1995 to 28.06.1995 and thereafter, he applied for Extraordinary Leave on Loss of Pay (EOL) for three years, for which he was eligible. 6. While so, by letter dated 12.06.1995, the petitioner was directed to appear before the Medical Board on 19.06.1995 at Periyakulam and the petitioner received the said letter only at the last moment i.e., just two days prior to the date fixed for appearance and he was not in good physical condition to go to Periyakulam to appear before the Medical Board. Hence, he was not able to appear before the Medical Board. He intimated the same by way of a telegram and requested to fix another date. However, there was no further communication directing him to appear before the Medical Board. 7. Subsequently, the Dean, Madurai Medical College, Madurai, sent a letter dated 17.07.2005 asking him to explain as to why he failed to appear before the Medical Board and the Dean sent another letter dated 25.01.1996 directing him to join duty at the transferred place on or before 02.02.1996, otherwise he would have to face disciplinary action. 8. While so, a charge memo dated 24.07.1996 under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was issued by the Director of Medical Education alleging that the petitioner unauthorisedly absented himself from duty, after the expiry of one month medical leave from 29.05.1995 and he failed to join duty at the transferred place viz., Government Hospital, Srivilliputhur. It was also alleged that he disobeyed the orders of the Dean, Madurai Medical College, Madurai. The said charge memo was served on the petitioner only on 21.11.1996. 9. On receipt of the charge memo, the petitioner submitted his explanation dated Nil in December 1996 stating that he was unable to join duty at Government Hospital, Srivilliputhur, as he was suffering from "Vathachoolai" and thus, he applied for medical leave, with proper medical certificate. The said charge memo was served on the petitioner only on 21.11.1996. 9. On receipt of the charge memo, the petitioner submitted his explanation dated Nil in December 1996 stating that he was unable to join duty at Government Hospital, Srivilliputhur, as he was suffering from "Vathachoolai" and thus, he applied for medical leave, with proper medical certificate. It is further stated that after recovering from illness, he went to Government Hospital, Srivilliputhur to join duty. However, he was told that his posting was cancelled. The grievance of the petitioner is that he was not intimated about the cancellation of his posting at Government Hospital, Srivilliputhur. He further stated that he went personally to the offices of Director of Medical Education and Director of Medical and Rural Health Services on many occasions for getting suitable posting order. He expressed his willingness to join duty. 10. The Director of Medical Education, being not satisfied with the explanation offered by the petitioner, decided to hold enquiry and accordingly, appointed one Dr.V.V.Muthusamy, Professor of Cardiology, Madurai Medical College, Madurai as Enquiry Officer, to enquire into the charges levelled against the petitioner. 11. The Enquiry Officer directed the petitioner to appear before him for an enquiry on 28.03.1997. Accordingly, the petitioner appeared before the Enquiry Officer. The Enquiry Officer put some questions on the petitioner and recorded his reply and informed the petitioner that the enquiry was over. 12. The Director of Medical Education sent a letter dated 15.10.1997 to the petitioner along with the enquiry report dated 26.08.1997 and directed the petitioner to submit his explanation on the findings of the Enquriy Officer holding that the charges were proved. 13. Accordingly, the petitioner submitted his explanation dated 20.03.1998 and requested the Director of Medical Education to drop the disciplinary proceedings initiated against him. 14. In the meantime, while the petitioner's posting at Government Hospital, Srivilliputhur was cancelled, he was posted at Government Hospital, Sankarankoil. The petitioner joined at the Government Hospital, Sankarankoil, during March 1998. 15. Subsequently, the petitioner requested for posting him in teaching line. His request was accepted and he was posted at Madurai Medical College, Madurai, during August 2000. Accordingly, he joined at Madurai Medical College, Madurai. The petitioner joined at the Government Hospital, Sankarankoil, during March 1998. 15. Subsequently, the petitioner requested for posting him in teaching line. His request was accepted and he was posted at Madurai Medical College, Madurai, during August 2000. Accordingly, he joined at Madurai Medical College, Madurai. While he was serving at Madurai Medical College, Madurai, the respondent passed the order in G.O. (D)No.1416, Health and Family Welfare (I) Department, dated 13.11.2000 removing the petitioner from service and the same was served on the petitioner on 26.12.2000. 16. The petitioner filed Original Application in O.A.No.2974 of 2001 before the Tamil Nadu Administrative Tribunal seeking to quash the order of the respondent in G.O.(D) No.1416, Health and Family Welfare (I) Department, dated 13.11.2000. 17. While admitting the Original Application on 27.04.2001, the Tribunal granted interim stay of the impugned order in G.O.(D) No.1416. On 08.06.2001, the interim stay was extended until further orders and the respondent was directed to file counter. 18. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was renumbered as W.P.No.169 of 2007. 19. While so, when the petitioner was to retire from service on 31.07.2009, on reaching the age of superannuation, the respondent issued the order in G.O.(D)No.892, Health and Family Welfare (I-2) Department, dated 30.07.2009 placing him under suspension, by invoking its power under Rule 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, on the ground that the enquiry into grave charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was pending. 20. The respondent passed another order in G.O.(D)No.896, Health and Family Welfare (I-2) Department, dated 31.07.2009 under Rule 56(1)(c) of the Fundamental Rules not permitting the petitioner to retire from service, until the enquiry into grave charges against him under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules are concluded. 21. The petitioner filed the writ petition in W.P.No.15981 of 2011 seeking to quash the aforesaid orders in G.O.(D)Nos.892 and 896, Health and Family Welfare (I-2) Department, dated 30.07.2009 and 31.07.2009 respectively and also sought for a consequential direction to permit him to retire from service, with effect from the date of his superannuation viz., 31.07.2009 with all benefits. 22. The respondent filed counter affidavit in W.P.No.169 of 2007 refuting the allegations made by the petitioner during September 2011. 22. The respondent filed counter affidavit in W.P.No.169 of 2007 refuting the allegations made by the petitioner during September 2011. It is stated therein that the petitioner unauthorisedly absented himself from duty for a long time and thus, he was removed from service based on the findings of the Enquiry Officer. Therefore, there was no illegality in removing the petitioner from service. Furthermore, the petitioner did not apply for Extraordinary Leave on Loss of Pay for three years. It is stated that in view of the pending charges, he was placed under suspension vide G.O.(D)No.892 and he was not allowed to retire from service vide G.O.(D)No.896. It is stated that nowhere during the disciplinary proceedings, the petitioner stated about the ego clash between the two Professors, being the reason for the initiation of disciplinary proceedings against him and the narration of the episode is nothing but a drama to escape from the clutches of the rules. Thus, the respondent sought to vacate the interim stay granted during April 2001 a decade back and also sought to dismiss the writ petition in W.P.No.169 of 2007. 23. Heard the submissions made on either side. 24. The learned counsel for the petitioner submitted that the petitioner served at various places. After getting P.G. Degree in Orthopaedics, he was qualified for teaching profession. Accordingly, he was absorbed in the teaching line. While so, without any justification, he was disturbed from teaching line and posted to non-teaching line. It is stated that now it is compartmentalized and the teaching line and the non-teaching lines are kept apart. The learned counsel submitted that the charge memo issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules was not in conformity with the aforesaid rule. While the rule contemplates that the list of witnesses and the documents, based on which the charges are framed, are to be provided, no list of documents and witnesses were furnished in the charge memo. Furthermore, the enquiry was conducted in blatant violation of principles of natural justice and the minimum ingredients of a valid enquiry was not present. In this regard, the learned counsel for the petitioner relied on a judgment of the Honourable Supreme Court in STATE OF UTTARANCHAL AND OTHERS VS. KHARAK SINGH [ 2008 (8) SCC 236 ]. 25. Furthermore, the enquiry was conducted in blatant violation of principles of natural justice and the minimum ingredients of a valid enquiry was not present. In this regard, the learned counsel for the petitioner relied on a judgment of the Honourable Supreme Court in STATE OF UTTARANCHAL AND OTHERS VS. KHARAK SINGH [ 2008 (8) SCC 236 ]. 25. The learned counsel for the petitioner submitted that the Enquiry Officer simply put some questions on the petitioner and the enquiry was said to be over, without examining the departmental witnesses and without any documents whatsoever being produced in the enquiry. The report of the Enquiry Officer is merely an ipse dixit, as there was no material for holding the charges as proved. The Enquiry Officer, as well as the respondent, have erroneously proceeded, as if the petitioner did not give any explanation to the charge memo, though he submitted his explanation on the charge memo. The learned counsel further submitted that the petitioner reported at the Government Hospital, Srivilliputhur, after recovering from illness, during December 1996. But he was not given posting, on the ground that the transfer order was cancelled. Later, when he was posted at Government Hospital, Sankarankoil, he joined duty, in March 1998. Subsequently, on his request, he was posted in the teaching line, during August 2000. In these circumstances, the respondent was not justified in removing the petitioner from service. 26. The learned counsel for the petitioner submitted that the Tribunal granted interim stay of the impugned order on 27.04.2001 in W.P.No.169 of 2007. Notice was ordered to the respondent returnable in two weeks. However, the respondent has not chosen to file counter affidavit. Hence, the interim stay was extended until further orders, on 08.06.2001 and the respondent was directed to file counter affidavit. Thereafter also, the matter was listed on various occasions and the respondent failed to file counter affidavit. Ultimately, the respondent filed counter affidavit in W.P.No.169 of 2007 only in September 2011. 27. The respondent has no regard for the interim orders passed by the Tribunal. It was submitted that G.O.(D)No.892 was passed, as if the proceedings into grave charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, was pending. No disciplinary action under Rule 17(b) was pending, since it culminated in passing of the order in G.O.(D) No.1416. Hence, G.O.(D)NO.892 was passed without application of mind. It was submitted that G.O.(D)No.892 was passed, as if the proceedings into grave charges under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, was pending. No disciplinary action under Rule 17(b) was pending, since it culminated in passing of the order in G.O.(D) No.1416. Hence, G.O.(D)NO.892 was passed without application of mind. Likewise, G.O.(D) No.896 was passed without application of mind, since the said order also proceeded, as if disciplinary action was pending under rule 17 (b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. 28. In any event, the learned counsel for the petitioner submitted that taking into account the entirety of the circumstances of the case, the punishment of removal from service, for unauthorised absence and deprival of pensionary benefits for his long service, is shockingly disproportionate to the charges. Thus, the learned counsel for the petitioner sought intervention of this Court, into the punishment of removal from service. 29. In this regard, the learned counsel for the petitioner relied on the judgment of the Honourable Apex Court in CHAIRMAN - CUM -MANAGING DIRECTOR, COAL INDIA LIMITED AND ANOTHER VS. MUKUL KUMAR CHOUDHURI AND OTHERS [ 2009 (15) SCC 620 ]. In the said case, the appellant therein absented unauthorisedly for six months. He was removed from service. The Honourable Apex Court ordered reinstatement without backwages. In this regard, paras 21 and 22 of the said judgment are extracted hereunder: "21.) In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company’s rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. The punishment is not only unduly harsh but grossly in excess to the allegations. 22.) Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if Respondent 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months." 30. On the other hand, the learned Special Government Pleader has produced the entire file. The learned Special Government Pleader submitted that there was no illegality in the impugned orders, since the petitioner was removed from service, after holding valid enquiry. Thus, the learned Special Government Pleader sought to sustain the impugned orders. 31. I have considered the submissions made on either side and perused the materials available on record. 32. In the original file, it is stated as "Nil" in respect of the list of exhibits produced by the Department and list of witnesses in proof of charges. In the original file, the complete service details of the petitioner, prior to the initiation of the disciplinary proceedings, are given and the same is extracted hereunder: "COMPLETE SERVICE DETAILS Relieved on the AN of 31-5-96 at Madurai Medical College. Unauthorised absence from 1-6-95 to till date 33. The aforesaid details make it clear that the petitioner served at various places and he also acquired higher qualification, which shows his eligibility to teach in the Medical College. While teaching in the Medical College, he also served as a Doctor, in the Government Hospital attached to the Medical College. Though at that time, there was no bar for transferring a person from teaching line to non-teaching line, later it was compartmentalized, according to the learned counsel for the petitioner. The same was not disputed by the learned Special Government Pleader. While so, the petitioner was transferred from Madurai Medical College, Madurai to Government Hospital, Srivilliputhur. That is, from teaching line to non-teaching line. However, the petitioner did not join at the transferred place and instead he applied for one month medical leave from 29.05.1995. Subsequently, he was directed to appear before the Medical Board at Periyakulam on 19.06.1995, vide letter dated 12.06.1995. That is, from teaching line to non-teaching line. However, the petitioner did not join at the transferred place and instead he applied for one month medical leave from 29.05.1995. Subsequently, he was directed to appear before the Medical Board at Periyakulam on 19.06.1995, vide letter dated 12.06.1995. According to the petitioner, since the time was very short, he was not able to appear before the Medical Board at Periyakulam. However, he intimated the same through telegram. The Dean, Madurai Medical College, Madurai sent a memo dated 17.07.1995 to the petitioner directing him to submit his explanation for not appearing before the Medical Board. Thereafter, the Dean, Madurai Medical College, Madurai, sent another memo dated 25.01.1996 directing the petitioner to join duty at Government Hospital, Srivilliputhur on or before 02.02.1996. It is also stated therein that if he failed to join duty, he would have to face disciplinary action. 34. In the said circumstances, the charge memo dated 24.07.1996 was issued to the petitioner making four charges and those charges are as follows: "Charge 1: that Dr.A.Chinnadurai, formerly Tutor in Orthopaedics, Madurai Medical College, Madurai, who was relieved of his duties on 31-5-95 A.N. on his transfer to Government Hospital, Srivilliputhur, had unauthorisedly absented from duty till date. Subsequent to his applying for unearned leave on medical certificate for 30 days from 29-5-95. Charge 2: that he failed to appear before the Medical Board at District Siddha Medical Officer, Government Headquarters Hospital, Madurai at Periakulam on 19-6-95 as fixed. Charge 3: that he disobeyed the orders of his superiors by not submitting his explanation called for in memo No.11543/E2/95, dt:17-7-95 of the Dean, Madurai Medical College, Madurai. Charge 4: that he had disobeyed the orders of his superiors by not rejoining duty at the new station as directed in Dean, Madurai Medical College, Madurai, memo No.11543/E2/96, dt: 25-1-96." 35. The aforesaid charge memo dated 24.07.1996 was served on the petitioner only on 21.11.1996. Immediately thereafter, the petitioner submitted his explanation dated Nil December 1996, to the Director of Medical Education, through the Dean, Madurai Medical College, Madurai. In the said explanation, it is stated that after recovering from illness, he went to Government Hospital, Srivilliputhur to join duty, but however, he was not permitted to join duty on the ground that his transfer order was cancelled. In the said explanation, it is stated that after recovering from illness, he went to Government Hospital, Srivilliputhur to join duty, but however, he was not permitted to join duty on the ground that his transfer order was cancelled. The Dean, Madurai Medical College, Madurai also acknowledged the petitioner's explanation on 04.12.1996, by affixing his office seal in the said explanation. The aforesaid explanation dated Nil December 1996 of the petitioner is extracted hereunder: "From Dr.A.CHINNADURAI Tutor in Orthopaedics, A14/1, Dean's Compound, New Natham Road, MADURAI. To Directorate of Medical Education CHENNAI .5. Through:Dean MaduraiMedical College MADURAI. SUB:Submittingthe written statement of defence for the Memo received from DME Chennai dated 24.10.96 REF:1) No.95456/SCI/2/95 Office of the DME Dated 24.7.96 2) Ref.No.19308/E3/96, Office of the Dean Madurai Medical College, Madurai dated 14.11.96. Since I was suffering from "VATHACHOOLAI" I was unable to join my duty at Govt. Hospital, Shrivilliputhoor, Hence I applied Medical Leave with proper Medical Certificate. After recovering from my illness I went to Shrivilliputhoor to join my duty but by posting was cancelled there without any prior intimation to me. Regarding this I went personally to DMS and DME repeatedly for so may times, but till date I could not get any posting either in DME or DMS side. At present I am ready to join in my duty. Yours sincerely, Sd/-(DR.A. CHINNADURAI) Copy to: DMS DME Health Secretary Health Minister." 36. The Director of Medical Education appointed one Dr.V.V.Muthusamy, Professor of Cardiology, Madurai Medical College, Madurai, as Enquiry Officer, vide official memorandum dated 30.01.1997. The Enquiry Officer directed the petitioner to appear before him for an enquiry on 28.03.1997. 37. The Enquiry Officer put seven questions on the petitioner. The first question was as to whether he understood the charges. The second question was as to whether he admitted the charges. The petitioner replied that he deny the charges. The third question was as to why he did not join duty at Government Hospital, Srivilliputhur, when he was transferred. The petitioner explained that he was suffering from joint and knee pain and that is why, he was not able to join duty. Further, the petitioner submitted that he sent a leave letter along with medical certificate. The fourth question was as to why he did not appear before the Medical Board at Periyakulam on 19.06.1995. The petitioner explained that he was suffering from joint and knee pain and that is why, he was not able to join duty. Further, the petitioner submitted that he sent a leave letter along with medical certificate. The fourth question was as to why he did not appear before the Medical Board at Periyakulam on 19.06.1995. The petitioner replied that he was not in a fit condition to travel to Periyakulam. Hence, he sent a telegram requesting to fix another date for appearance before the Medical Board. The fifth question was as to why he did not send any explanation to the memo dated 17.07.1995 of the Dean, Madurai Medical College, Madurai directing him to submit his explanation, as to why he did not appear before the Medical Board. The petitioner explained that apart from his joint / knee pain, his family was in grief since his father was ill and his sister died at that time. In the said circumstances, he was not able to send his explanation. The sixth question was as to why he did not join duty as directed by the Dean, Madurai Medical College, in his letter dated 25.01.1996. The petitioner submitted that he went to Government Hospital, Srivilliputhur to join duty. But the Joint Director therein, informed him that an intimation was given to the Director of Medical Education stating that he did not join duty and that he sent a medical certificate. The seventh question was as to why he did not discharge his duties as a responsible Medical Officer. The petitioner explained that he applied leave due to his medical and family conditions and if a posting order is given, he would join at any place. These are all the answers given by the petitioner. 38. It is seen from the records that the Enquiry Officer submitted his report on 28.03.1997 itself. But no such report was found in the original file. The Dean, Madurai Medical College, Madurai, sent a letter dated 29.07.1997 to the Enquiry Officer, directing him to give his findings on each charge, as to whether the charges are proved or not. The Enquiry Officer was further directed to prepare the report in the prescribed format and submit the same in quadruplicate. The Dean, Madurai Medical College, Madurai, sent a letter dated 29.07.1997 to the Enquiry Officer, directing him to give his findings on each charge, as to whether the charges are proved or not. The Enquiry Officer was further directed to prepare the report in the prescribed format and submit the same in quadruplicate. The contents of said letter dated 29.07.1997 of the Dean, Madurai Medical College, Madurai is extracted hereunder: "The attention of Dr.V.V.Muthusamy, Professor of Cardiology is invited to his letter 5th cited. The enquiry report received in the reference 5th cited is returned herewith alongwith the enclosures. The enquiry officer should furnish his findings specifically for each charge as to whether the charge is proved (or) not proved. The enquiry report is to be prepared in the prescribed format and submitted in quadruplicate. The Enquiry Officer is requested to resubmit the enquiry report in quadruplicate with his specific findings as to whether the charges are proved (or) not proved." 39. The Enquiry Officer gave his report dated 26.08.1997 holding that the charges were proved against the petitioner. The Enquiry Officer proceeded, as if the petitioner did not give his statement of defence in writing. In this regard, the relevant passage in the report dated 26.08.1997 of the Enquiry Officer is extracted hereunder: "(iii) Charges which were admitted or dropped or not pressed if any: The delinquent has not submitted his statement of defence by writing. He has denied charges levelled against him." But the same is not correct, as the petitioner submitted his explanation to the charges in December 1996 itself. Furthermore, the aforesaid passage makes it clear that the petitioner denied the charges. 40. I have also gone through the questions put to the petitioner, by the Enquiry Officer and the reply made by the petitioner. In the enquiry report, at one place, the Enquiry Officer has stated as follows: "(vi) BRIEF STATEMENT OF THE CASE IN RESPECT OF THE CHARGES ENQUIRED INTO: Though the delinquent has not objected the charges levelled against him, an opportunity to defend himself at the time of enquiry on the charges was given to him." Furthermore, the findings of the Enquiry Officer are ipse dixit and there is no application of mind. When the petitioner categorically answered to each charge, those answers were not considered by the Enquiry Officer. When the petitioner categorically answered to each charge, those answers were not considered by the Enquiry Officer. Furthermore, when the petitioner categorically stated as to why he was not able to appear before the Medical Board at Periyakulam on 19.06.1995 and also stated about the telegram being sent intimating about his inability to appear and requesting to fix another date, the same was not considered by the Enquiry Officer, in a proper perspective. Likewise, the petitioner stated that he went to the Government Hospital at Srivilliputhur to join duty, he was not permitted to join duty stating that his transfer order was cancelled. The original file also indicates that the transfer order was cancelled and he was posted at Government Hospital, Sankarankoil. It is not known as to the date of joining at the Government Hospital, Sankarankoil. The petitioner served at the Government Hospital, Sankarankoil from March 1998, as per his pleadings and the same was not disputed in the counter affidavit. He requested the respondent to give him a suitable posting order, particularly in teaching line. The Government sent a letter dated 22.06.1998 to the Director of Medical Education, directing to give suitable postings to the petitioner in the first instance and send a report furnishing the details of date and place of joining immediately to them. In this regard, the contents of the letter dated 22.06.1998 of the Government is extracted hereunder: "Sir, Sub: Public Servant - Dr.A.Chinnadurai, Tutor in Orthopaedics, Madurai Medical College, Madurai’ Unauthorised absence from duty - Disciplinary action taken Instruction Issued. Ref: Your letter Ref.No.95456/SCI/2/95, dated 15.4.98. I am directed to request you to give a suitable postings to Dr.A.Chinnadurai in the first instance, and send a report to the Government immediately the date and place of joining with upto date attendance, immediately." But the petitioner was given posting in teaching line only during 2000, pursuant to the Government letter dated 22.06.1998. 41. As rightly contended by the learned counsel for the petitioner, the charge memo was issued under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Rule 17(b) makes it mandatory to give the list of witnesses and documents, based on which, the charges are made. But the same is not done in the present case. Furthermore, the enquiry was conducted in blatant violation of principles of natural justice. Rule 17(b) makes it mandatory to give the list of witnesses and documents, based on which, the charges are made. But the same is not done in the present case. Furthermore, the enquiry was conducted in blatant violation of principles of natural justice. In the enquiry, witnesses were not examined and documents were not produced on the side of the Department, to establish the charges. On the other hand, the petitioner was put some questions and the explanation/answers offered by the petitioner were recorded by the Enquiry Officer. In fact, the Enquiry Officer has recorded that there was no exhibits in proof of the charges and that there was no witnesses for the Department. Such an enquiry is bad and illegal. Even, the minimum ingredients of a valid enquiry is not present. 42. At this juncture, it is relevant to extract the relevant paras in the judgment of the Honourable Supreme Court in STATE OF UTTARANCHAL AND OTHERS VS. KHARAK SINGH [ 2008 (8) SCC 236 ] relied on by the learned counsel for the petitioner, which reads as follows: "10.) The following observations and principles laid down by this Court in Associated Cement Co. Ltd. v. Workmen1 are relevant: (SCR pp. 659-61) “................... It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant, and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings. Therefore, we are satisfied that Mr Sule is right in contending that the course adopted in the present enquiry proceedings by which Malak Ram was elaborately cross-examined at the outset constitutes another infirmity in this enquiry.” 15.) From the above decisions, the following principles would emerge: (i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.' (ii) If an officer is a witness to any of the incidents which is the subject-matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the enquiry officer. If the said position becomes known after the appointment of the enquiry officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any."" 43. The findings of the Enquiry Officer, based on which the Government Order in G.O. (D)No.1416 was passed removing the petitioner from service, are totally perverse. No reason was given for holding the charges as proved. In the absence of any evidence let in by the Department, the findings of the Enquiry Officer, holding the charges as proved, shall be characterized as perverse. The explanations / answers offered by the petitioner in the enquiry was also not taken note of. No reason was given for holding the charges as proved. In the absence of any evidence let in by the Department, the findings of the Enquiry Officer, holding the charges as proved, shall be characterized as perverse. The explanations / answers offered by the petitioner in the enquiry was also not taken note of. The report of the enquiry officer, as well as the Government Order in G.O.(D) No.1416 proceeded, as if the petitioner did not give any explanation. For all these reasons, I am of the considered view that the findings of the Enquiry Officer are perverse and G.O.(D) No.1416, based on such findings, is liable to be quashed. 44. As rightly contended by the learned counsel for the petitioner, G.O.(D) Nos.892 and 896 were passed, on an erroneous basis, without application of mind. Admittedly, there was no disciplinary action pending against the petitioner under Rule 17(b), when the said Government Orders were issued. The charge memo dated 24.07.1996 issued under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules ended in the issuance of G.O.(D)No.1416. But on the day of his retirement, both the orders viz., G.O.(D) Nos.892 and 896 were passed, one placing him under suspension and other not permitting him to retire from service, on an erroneous basis that an enquiry was pending at that time, into grave charges, under Rule 17(b). Hence, in my view, both G.O.(D) Nos.892 and 896 are also liable to be quashed. 45. In the result, the impugned orders in G.O.(D) No.1416, G.O.(D) No.892 and G.O.(D) No.896, Health and Family Welfare Department, dated 13.11.2000, 30.07.2009 and 31.07.2009 respectively, are quashed and the writ petitions are allowed. The respondent is directed to permit the petitioner to retire from service, with effect from 31.07.2009 and pay wages until his retirement and settle all the terminal benefits, within a period of three months from today. No costs. Consequently, connected miscellaneous petitions are closed.