Tribunal order has to be obeyed

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 28/03/2006

Coram

The Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR

Writ Petition No.36490 of 2005
and
W.P.M.P.No.39278 of 2005


Dr.N.Shahida Begum ... Petitioner

-Vs-

1. State of Tamil Nadu,
rep.by its Secretary to Government,
Health and Family Welfare Department,
Fort St.George,
Chennai -600 009.

2. The Director of Medical Services
and Rural Health Services,
Chennai-600 006. ... Respondents


This writ petition has been filed under Article 226 of Constitution of
India, for issuance of a writ of certiorarified mandamus calling for the
records in proceedings No.1275317/SC1/1/87 dated 31.12.2002 and the
consequential order for proposed punishment passed by the second respondent
vide No.127537/SC1/11/87 dated 14.9.005 and served on the petitioner on
17.10.2005 and quash the same and direct the second respondent to pay the full
pension and other pensionary benefits due to her.

!For Petitioner : Mr.G.Muthukrishnan

^For Respondents : Mrs.D.Malarvizhi,
Government Advocate

:O R D E R

Prayer in the writ petition is to issue a writ of certiorarified
mandamus calling for the records relating to the order dated 31.12.2002 and
the consequential order dated 14.9.2005 passed by the second respondent and
quash the same and direct the second respondent to pay the full pension and
other pensionary benefits due to the petitioner.
2. The brief facts necessary for disposal of the writ petition
are as follows.
(a) Petitioner while working as Civil Assistant Surgeon, attached
to the Government Hospital, Kaveripattinam, Dharmapuri District, received a
charge memo dated 21.8.1990 on the allegations that while she was working in
the Government Hospital, Sendamangalam, demanded a sum of Rs.50/- and accepted
Rs.30/- from one Perumal @ Singaram, Son of Ramasamy Gounder of Perumalpalayam
for admitting her wife as an inpatient in the Government Hospital, and that
demanded Rs.50/- and accepted Rs.30/- from one Ganesan, Son of Chinna Goundar,
Muthuganapathy, who took his mother to the Hospital, Sendamangalam for
treatment. On the said allegations, charges were framed against the
petitioner and an enquiry was conducted. Thereafter, petitioner was
terminated from service by the order of the first respondent issued in
G.O.Ms.No.1757 Health, Indian Medicine, Homeopathy and Family Welfare
Department, dated 9.9.1988.
(b) The said order of termination was challenged by the petitioner
in W.P.No.12061 of 1988 and after constitution of Tamil Nadu State
Administrative Tribunal, the same was transferred to the file of Tribunal and
renumbered as T.A.No.950 of 1989. The Tribunal by order dated 11.12.1989, set
aside the order of punishment and held as follows,
"... In view of our findings on the aforesaid two grounds, we have no
hesitation in quashing the impugned order of termination. Accordingly, we
allow this application and set aside the order of termination passed in
G.O.Ms.No.1757, Health, Indian Medicine, Homeopathy and Family Welfare
Department, dated 9.9.1988 and direct the 1st respondent to reinstate the
applicant with all attendant benefits. There will be no order as to costs."
The said order of the Administrative Tribunal was accepted by the respondents.
However, the Government reopened the disciplinary proceedings contrary to the
order of the Tribunal, even though no liberty was granted to reopen or rectify
the mistake and conduct fresh enquiry or issue a fresh charge memo. Such an
order was passed in G.O.Ms.No.1 497 Health, Indian Medicine & Homeopathy and
Family Welfare Department, dated 21.8.1990, wherein petitioner was reinstated
in service and directed the Director of Medical Services to restart the
disciplinary proceedings afresh from the stage where the defect has crept in
and after following all the procedures as laid down in the Tamil Nadu Civil
Services (Classification, Control and Appeal) Rules, remit the case for
passing final orders.
(c) The said action of the Government in restarting the enquiry
was challenged in O.A.No.2941 of 1990 before the State Administrative tribunal
and the same was disposed of by the Tribunal by common order dated 14.9.2001
along with batch of cases, which reads as follows,
"All these applications are filed praying for revocation of the
suspension order. Suspension orders have been made as early as in 1990. In
some of the cases stay has been granted and the applicants herein have been
reinstated. In most of the cases, the counsel on record is not able to say
the present position, as they could not get any instructions from their
clients. In view of the long gap at about eleven years, it is not probable
that they are still kept under suspension. They must have been reinstated
long back and disciplinary proceedings must have been reinstated long back and
disciplinary proceedings must have been taken also must have ended in one or
other. No controversy now survives. Therefore, all these petitions are kept
pending needlessly and therefore all these petitions are ordered to be
closed."
According to the petitioner, the said original application was neither
dismissed nor allowed and the point raised was not gone into as to whether the
first respondent was having any jurisdiction to entertain the disciplinary
proceeding, particularly when the order of termination was quashed, without
granting any liberty to reopen the same.
(d) The first respondent thereafter proceeded with the enquiry and
a show cause notice was issued by the second respondent on 31.12.2002 and
requested the petitioner to offer her further representation for which
petitioner also submitted representation, but without considering the same
second respondent issued the order dated 14.9.2005 for proposed punishment of
cut of Rs.100/- per month in the pension for one year, which are challenged in
this writ petition.

3. The writ petition was posted on 6.3.2006, 7.3.2006, 13.3.2006
and 20.3.2006, but no counter affidavit was filed. On instructions, the
learned Government Advocate argued the matter.

4. The learned counsel for the petitioner argued that the
respondents have no jurisdiction to re-open or re-issue the charge memo, after
order was passed by the Tribunal in T.A.No.950 of 1989 on 11.12.198 9, as no
liberty was given to the respondents.

5. I have perused the order passed by the Tamil Nadu
Administrative Tribunal as referred above, wherein the Tribunal quashed the
order without giving any liberty. Therefore the action of the second
respondent in ordering restart of disciplinary proceeding afresh as ordered in
G.O.Ms.No.1497 dated 21.8.1990, while reinstating the petitioner, is
unauthorised and without jurisdiction.



6. The learned counsel appearing for the petitioner submitted
that even though the petitioner reached the age of superannuation on 31.1.2
003, he was not paid any terminal benefits, monthly pension and also eligible
leave salary, in spite of representations and reminders, on the ground that
disciplinary proceeding was pending. The learned Government Advocate
submitted that in view of the non-completion of disciplinary proceeding, the
petitioner was not given terminal benefits and the petitioner was allowed to
retire from service by G.O.(D)No.12 4 Health and Family Welfare Department
dated 30.1.2003. Since the restart of disciplinary proceeding is without
obtaining liberty of the Administrative Tribunal, the action of the
respondents is unauthorised and consequently reissuance of charge memo,
conduct of enquiry based on which the impugned show cause notice was issued,
are to be treated as unauthorised and the petitioner shall be treated to have
been retired from sergvice with effect from 31.1.2003. Petitioner shall be
paid his retirement benefits and all service benefits, taking note of her
superannuation on 31.1.2003 within a period of one month from the date of
receipt of copy of this order.

7. In the result, the writ petition is allowed. The impugned
orders of the second respondent dated 31.12.2002 as well as 14.9.2005 are
quashed. The respondents are directed to settle the retirement benefits of
the petitioner within a period of three months from the date of receipt of
copy of this order. Petitioner is also entitled to all service benefits. No
costs. Connected WPMP No.39278 of 2005 is closed.


vr


To
1. The Secretary to Government,
Health and Family Welfare Department,
Fort St.George, Chennai -600 009.

2. The Director of Medical Services and Rural Health Services,
Chennai-600 006.