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2012 DIGILAW 1570 (MAD)

Gnaanarubhan v. Commissioner, Indian Medicine & Homeopathy, Arumbakkam

2012-03-29

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner was selected as Assistant Medical Officer (Siddha) and in pursuance thereto joined service on 03.03.1992. The petitioner was posted at Nagalur, Salem 2. The petitioner was performing his duty to the entire satisfaction of the community, when all of a sudden was transferred on 05.03.1999 to Thiruvadanai, Ramanathapuram District, which is about 800 miles away. The petitioner requested the Joint Director of Medical Services, who had passed the impugned order of transfer, who in turn on 09.04.1999 vide his Letter No.1349/J8/99, gave no objection to the 1st respondent for posting the petitioner within Perambalur District. The petitioner requested respondents to pass appropriate order, but no order was passed. 3. The petitioner challenged the transfer on the ground that it was motivated, malafide and was passed in the middle of the academic year before completion of 3 years of service, that too, by the incompetent person, who was not the appointing authority / Superior to appointing authority. 4. It is the submission of petitioner that transfer was engineered at the instance of his ex-wife, the complaint which was unwarranted. The case of petitioner is that the complaint came to the knowledge of petitioner only at the time of hearing of his Original Application, which was filed against the transfer order. 5. In the counter, it was disclosed that the petitioner had illicit relationship with one staff Nurse, called Anbukarasi, wife of Manoharan, working as Assistant i the Office of the District Superintendent of Police, Tanjavur. It was stated in the counter that petitioner was transferred on the complaint. 6. The application, moved by petitioner, was accepted and the order of transfer was set aside. The operative part of order, passed by the learned Tamilnadu Administrative Tribunal, in the previous petition filed by petitioner, reads as under: District and on 13.05.1993, he was transferred to Ariyalur. Thereafter, he was transferred to Irumbulikurichi. On 10.01.1998, he was again transferred to Udyairpalayam. "I am inclined to accept the version of the applicant that it was on account of Mr.Manoharan's inability to repay the debt incurred by his by borrowing money from Tmt. Hilda Pushpavathy, the mother of Dr.Gnaanarubhan that he engineered a petition involving his wife with Dr.Gnaanarubhan." In compliance with the order passed by the learned Tamilnadu Administrative Tribunal, that the petitioner was posted within the District of Perambalur, at Government Rural Siddha Dispensary, Veppur. Hilda Pushpavathy, the mother of Dr.Gnaanarubhan that he engineered a petition involving his wife with Dr.Gnaanarubhan." In compliance with the order passed by the learned Tamilnadu Administrative Tribunal, that the petitioner was posted within the District of Perambalur, at Government Rural Siddha Dispensary, Veppur. It was mentioned in the transfer order that it was without prejudice to the pending disciplinary proceedings. 7. The submission of petitioner is that in pursuance to the order passed by the learned Tribunal and in compliance with the transfer order, he joined the new place of posting on 28.01.2002. The case of petitioner is that proceedings under Section 17(b) of Tamil Nadu Government Services (Regulation and Appeal) was initiated against petitioner, when his T.A.No.235 of 1999, was pending. 8. It is further case of petitioner that before initiating proceedings, no notice was served on the petitioner and it was on 16.08.2000, that the third respondent along with Police, served the petitioner by affixation without charge memo or annexture attached therewith. The charge memo however was served on petitioner subsequently. 9. The petitioner submitted a detailed explanation to the charge memo on 14.02.2001, but no reply was received. The case of petitioner is that he had also requested the enquiry officer not to proceed with the matter, as the matter was pending before the learned Tribunal and there was no whisper about the disciplinary proceedings, arising from illegal transfer. 10. It is the case of petitioner that respondents are proceedings with the departmental enquiry only to avoid payment of consequential benefits to the petitioner, as the petitioner was allowed to join duty, while setting aside illegal order of transfer. 11. On the pleadings referred to above, the petitioner prays for issuance of a writ in the nature of Certiorari to quash the proceedings Na.Ka.No.4/Mu/2001 dated 27.02.2002 and all further consequential proceedings and quash it as illegal. 12. The impugned order is a show cause notice, issued by the Enquiry Officer in the pending enquiry. The petitioner has not prayed for quashing of the charge memo, once the charge sheet under Section 17(b) is pending and enquiry Officer is appointed, there is no ground to quash the show cause notice. In absence of issuing notice to the petitioner to appear before the enquiry, the enquiry cannot proceed in violation of principle of natural justice. The petitioner has not prayed for quashing of the charge memo, once the charge sheet under Section 17(b) is pending and enquiry Officer is appointed, there is no ground to quash the show cause notice. In absence of issuing notice to the petitioner to appear before the enquiry, the enquiry cannot proceed in violation of principle of natural justice. The impugned order is notice to the petitioner to participate in the enquiry, so that his defense can be considered by the Enquiry Officer. In absence of challenge to enquiry proceedings, the petitioner cannot challenge the notice of enquiry officer, calling the petitioner to appear before enquiry officer. 13. The writ petition, as framed being totally misconceived, is ordered to be dismissed. No costs.