Dr. N. Shahida Begum vs State of Tamil Nadu

N. Paul Vasanthakumar, J.—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.

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.

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.

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.

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.

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.

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.