Dr. T. Muthukrishnan vs The Special Commissioner, Indian System of Medicine and Homeopathy

K. Chandru, J.—The petitioner is an Assistant Medical Officer at Govt. Siddha Hospital, Govt. Head Quarters Hospital, Erode. There were

complaints received against the petitioner which necessitated his transfer from out of the said Hospital to the Government Primary Health Centre at

Thonari, The Nilgiris. The petitioner was given relieving order on 04.04.2006 based upon the Transfer Order dated 29.03.2006. The petitioner

filed a writ petition in W.P. No. 11328 of 2006. After notice to the respondents, the said writ petition was allowed by this Court by order dated

24.04.2006. The operative portion of the order is found in paragraph-3, which is as follows:

A plain reading of the impugned order shows that the petitioner has been transferred only on the ground of complaints and strong resentment of

staff in the dispensary / hospital. In fact, the impugned order refers to several complaints alleging personal misbehaviour and conduct inappropriate

to decorum and orderly functioning of a public service dispensary. In my opinion, the impugned order is punitive in nature and cannot be sustained

in the eye of law. Hence, the impugned order is set aside and the Writ Petition is allowed. However, this order shall not stand in the way of the

respondent to proceed with the enquiry against the petitioner in accordance with law. No costs. Consequently, W.P.M.P. No. 12879 of 2006 is

closed.

This Court, while quashing the transfer order, gave liberty to the respondent to take action for any complaints of specific case of misbehaviour. Far

from taking any action in terms of the liberty granted by this Court, the respondent framed a charge memo under Rule 17(a) of the Tamil Nadu

Civil Services (Discipline & Appeal) Rules, wherein the following three allegations were made against the petitioner:

Lapse No. -1

The said Dr.T.Muthukrishnan while working at the said Siddha Wing was transferred to Government Primary Health Centre, Thooneri, The

Nilgiris District vide the order reference No. 3742/E1/2/2006 dated 29.03.2006 of the undersigned. But the said Dr.T.Muthukrishnan, Assistant

Medical Officer [Siddha] did not join duty at the new place. Thus he has disobeyed the orders of his superior and acted in a manner of

unbecoming of a Government Servant.

Lapse No. -2

The said Dr.T.Muthukrishnan, while working at the said Siddha Wing has refused to receive the transfer orders read in lapse No. 1 above and the

relieving order under reference No. 300/E/2006 dated 04.04.2006 of the District Siddha Medical Officer, Erode. His refusal to receive the said

two orders when he was asked to receive them clearly shows his insubordination which is against the Tamil Nadu Government Servants'' Conduct

Rules 1973.

Lapse No. -3

The said Dr.T.Muthukrishnan, Assistant Medical Officer [Siddha], consequent on his transfer to The Nilgiris District was relieved of his duties at

the above said place by the District Siddha Medical Officer, Erode on 04.04.2006. He refused to receive the orders despite instructions from the

District Siddha Medical Officer, Erode & instead applied for Medical Leave for 30 days with effect from 04.04.2006. The District Siddha

Medical Officer, Erode has referred him to Medical Board at Namakkal for a second medical opinion. The Chairman, Medical Board, Namakkal

directed him to appear before the Medical Board on 20.04.2006. But the said Dr.T.Muthukrishnan, Assistant Medical Officer [Siddha] did not

appear before the board. Therefore, he has been recalcitrant to the orders of his superiors and acted in a manner of unbecoming of a Government

Servant.

These three allegations were described as lapses. After getting explanation from the petitioner, by the impugned order dated 27.04.2007,

punishment of stoppage of next increment for one year without cumulative effect was ordered against the petitioner, even though an appeal lies

against the said order to the Government. Hence the petitioner has chosen to file the present writ petition.

Heard the arguments of Mr.M.Muthugeethayan, learned Counsel appearing for the petitioner and Mr.Pa.Kadirvel, learned Govt. Advocate

appearing for the respondent and perused the records. The original transfer was based upon complaints received against the petitioner for his

misbehaviour and misconduct and therefore this Court was forced to quash the charge memo. Since no transfer can be made as a measure of

punishment or to avoid disciplinary action, this Court also gave a liberty to the respondent to take action on the basis of complaints received

against the petitioner. Far from taking any action on the basis of those complaints which were disclosed in the memorandum dated 29.03.2006, the

respondent has framed charges against the petitioner contending that the petitioner has disobeyed the orders of his superior and that the petitioner

has refused to receive the transfer order. This action of the respondent is contumacious as it amounts to non-compliance of the order passed by

this Court in W.P. No. 11328 of 2006 dated 24.04.2006. When the transfer order is held to be illegal, there is no question of the respondent

framing charges in respect of the very same transfer order not being either obeyed or not being received by the petitioner. In fact, the petitioner has

successfully challenged the said transfer order before this Court and this Court refrained from taking any serious action on the respondent even

though their action is highly reprehensible.

Under the circumstances, the issuance of notice under Rule 17(a) of the Tamil Nadu Civil Services (Discipline & Appeal) Rules and the

punishment found in the impugned order is set aside and the writ petition stands allowed. Consequently, M.P. No. 1 of 2007 is closed. No costs.

However, if still the respondent feels that there are serious complaints against the petitioner, taking advantage of the liberty given by this Court on

the earlier occasion, it is open to the respondent to proceed in respect of those complaints.