Dr.G.Natarajan Vs. 1.The District Collector - Court Judgment

Excerpt:
before the madurai bench of madras high court dated:18. 09.2015 coram the honourable mr.justice t.raja w.p.(md) no.9020 of 2013 and m.p.(md) nos.1 & 2 of 2013 and w.p.(md) no.9784 of 2013 and m.p.(md) nos.1 & 2 of 2013 & 1 of 2015 and w.p.(md) no.10449 of 2013 and m.p.(md) no.1 of 2013 dr.g.natarajan ... petitioner in all w.ps. -vs- 1.the district collector madurai, madurai district 2.the dean madurai medical college madurai 3.the inspector of police oothakadai police station madurai ... respondents in w.p.(md) no.9020 of 2013 4.the state of tamil nadu rep.by its secretary department of health & family welfare fort st.george, chennai-600 009 5.the director of medical education kilpauk, chennai-600 010 6.the dean madurai medical college madurai, madurai district 7.the district collector madurai district madurai, madurai district 8.s.annaraj the inspector of police othakadai police station othakadai, madurai & district ... respondents in w.p.(md) nos.10449 of 2013 & w.p.(md) no.9784 of 2013 prayer (w.p.(md) no.9020 of 2013): writ petition is filed under article 226 of the constitution of india to issue a writ of certiorarified mandamus to call for the records relating to the impugned notice issued by the first respondent in his proceedings na.ka.no.c3/27969/2013, dated 16.05.2013, and the consequential notice issued by the first respondent in his proceedings roc.no.21489/2013/c3, dated 20.05.2013, and quash the same as illegal. prayer (w.p.(md) no.9784 of 2013): writ petition is filed under article 226 of the constitution of india to issue a writ of certiorari to call for the records relating to the (d) no.617 (health and family welfare ?. a1) department, dated 12.06.2013 and the consequential order issued by the third respondent, dean in ref.no.6484/e1/1/2013, dated 14.06.2013, quash the same. prayer (w.p.(md) no.10449 of 2013): writ petition is filed under article 226 of the constitution of india to issue a writ of certiorari to call for the records relating to the impugned charge memo, issued by the 2nd respondent, director of medical education, in ref.no.28330/sci/3/2013, dated 05.06.2013 and to quash the same. !for petitioner : mr.isaac mohanlal (in w.p.md) no.10449 & 9784 of 2013) for petitioner : mr.md.imran (in w.p.md) no.9020 of 2013) for m/s.ajmal associates ^for respondents : mr.k.chellapandian, addl.adv.general (in w.p.md) nos.10449 & 9020 of 2013) assisted by mr.r.anandharaj, govt.adv. for r1 to r4 : mr.k.chellapandian, addl.adv.general (in w.p.md) no.9784 of 2013) assisted by mr.r.anandharaj, govt.adv. for 5th respondent : mr.r.anandharaj, govt.adv. (in w.p.md) no.9784 of 2013) :c o m m o n order since the relief sought for in all these writ petitions are interconnected and identical, all these writ petitions were clubbed and heard together and are disposed of by this common order.2. the petitioner dr.g.natarajan, who is serving as a professor and head of the department of forensic medicine, in madurai medical college, madurai, has filed these three writ petitions with the following prayer: (i) w.p.(md) no.9020 of 2013 is filed to quash the impugned notice, in na.ka.no.c3/27969/2013, dated 16.05.2013, and the consequential notice in roc.no.21489/2013/c3, dated 20.05.2013, issued by the district collector, madurai district, whereby and whereunder the district collector, called upon petitioner to attend enquiry with regard to certain complaints received from some quarters. (ii) w.p.(md) no.9784 of 2013 is filed to quash the proceedings issued by the secretary to government, in g.o.(d) no.617 health and family welfare (a1) department, dated 12.06.2013 and the consequential relieving order, issued by the dean, madurai medical college, madurai, in ref.no.6484/e1/1/2013, dated 14.06.2013, whereby and whereunder the petitioner has been transferred and posted as professor of forensic medicine, thanjavur medical college, thanjavur in the place of dr.gandhi (retired). (iii) w.p.(md) no.10449 of 2013 is filed to quash the impugned charge memo, in ref.no.28330/sci/3/2013, dated 05.06.2013 issued by the director of medical education, containing charges alleging that when the petitioner was functioning as head of the department of forensic medicine, he was harsh, hostile and non-cooperative with police personnel and he has a tendency to harass police personal and most of the cases related to othakadai police station are suffered in the form of non-compliance for spot postmortem, delay in exhumation of the body and delay in conducting the postmortem etc.3. mr.isaac mohanlal, learned counsel appearing for the petitioner in w.p.(md) nos.9784 and 10449 of 2013, assailing the impugned charge memo, dated 05.06.2013, would submit that the petitioner, initially after joining the medical service as assistant surgeon, on 20.04.2000, in the primary health centre, perambalur district, assumed charge as tutor of forensic medicine at madurai medical college on 22.11.2000 and thereafter he got promotion as assistant professor in forensic medicine on 22.11.2001. again, after five years, he reached the position of associate professor on 20.09.2006 and within two years therefrom he was re-designated as professor on 03.12.2008.4. when the petitioner has been serving as such in madurai medical college, madurai, during 2012, the inspector of police, attached to othakadai police station, for the reasons best known to him, made some false complaints against the petitioner to the director of medical education and the dean of madurai medical college, alleging that he did not co-operate for the postmortem scheduled to be conducted on 03.07.2012 and because of his non- cooperation, the postmortem was conducted belatedly on 05.07.2012.5. with regard to the said complaint, the dean of the madurai medical college constituted an enquiry committee vide proceedings, dated 24.07.2012 and called upon the petitioner to attend enquiry on 31.07.2012 at 02.00 p.m. pursuant to the said proceedings, he attended the enquiry and submitted his explanation. the enquiry officer, after completion of the enquiry, filed his report stating that the allegations levelled against the petitioner were not proved.6. subsequently, the inspector of police, attached to othakadai police station, made the same complaint to the superintendent of police, madurai, who in turn forwarded the same to the district collector, madurai district, on 15.07.2012. the district collector, madurai district, on receipt of the same forwarded the same to the dean, madurai medical college, madurai, vide proceedings, dated 01.08.2012, recommending to conduct an enquiry on the allegations made against the petitioner.7. the dean, madurai medical college, madurai, accepting the recommendation of the district collector, madurai district, constituted an enquiry committee consists of two members. the petitioner attended the enquiry conducted on 08.09.2012 and submitted his explanation. the enquiry officers, after completion of the enquiry, submitted a report on 27.09.2012, finding that the delay in conducting the postmortem was attributable to the inspector of police, attached to othakadai police station and the petitioner had no role in the alleged delay.8. further, the learned counsel for the petitioner would submit that when the matter stood thus, on 27.04.2013, the district collector, madurai district, again issued a summon to the petitioner, exercising his power under section 110 of the code of criminal procedure code, which is meant only for holding enquiry against habitual offenders, habitual robbers, house-breakers and thief or forgers. section 110 cr.p.c., envisages that when an executive magistrate receives information that there is within his local jurisdiction a person who- (a) is by habit a robber, house- breaker, thief, or forger, or, (b) is by habit a receiver of stolen property knowing the same to have been stolen, or (c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or (d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under chapter xii of the indian penal code (45 of 1860 ), or under section 489-a, section 489-b, section 489-c or section 489-d of that code, or (e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or (f) ........... (g) ........... such magistrate may require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years.9. the learned counsel would further submit that when the petitioner has been serving as a professor of forensic medicine in madurai medical college, madurai, the district collector, madurai district, wrongly exercising his arbitrary power, that too, under section 110 cr.p.c., which is not meant for respectable persons like doctor, who discharges his responsible life saving duties, on 27.04.2013, summoned the petitioner for enquiry. as a result, the petitioner's reputation is diminished and at peril.10. according to the learned counsel, the district collector has no jurisdiction or power to summon the petitioner, who is serving as a professor of forensic medicine. that apart, if there is any complaint against the petitioner, in accordance with law, for which the medical department alone is entitled to initiate proceedings, as per rule 17 of the tamil nadu civil services (discipline and appeal) rules, 1955 and not the district collector, who is a foreigner to the medical department.11. the learned counsel for the petitioner would further submit that a reading of the charge memo, dated 05.06.2013, issued by the director of medical education would show that it does not throw any light whatsoever on the aspect whether the petitioner has committed any misbehaviour or hostile or he was not co-operated with the police personnel in respect of any postmortem of any corps or any particular individual. that apart, the charge levelled against the petitioner, in the charge memo, dated 05.06.2013, does not mention about the date, month, year or name of the dead body or from which jurisdiction it has been forwarded to the petitioner for conducting postmortem while so, in such circumstances, it would be highly difficult for the petitioner even to submit his explanation. when the petitioner has been conducting postmortem on various dead bodies everyday, unless there is a specific mention in the charge memo with regard to the name of the dead body, date, month and year, on which date the dead body was forwarded by the concerned inspector of police to the petitioner, not only the petitioner, nobody can give his explanation in response to such a charge memo. therefore, the vague charge memo, in the eye of law, is unsustainable and it is liable to be set aside, he pleaded.12. in this regard, the learned counsel for the petitioner, referring to the decision in union of india v. gyan chand chattar, reported in (2009) 12 scc78 would submit that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as to what is the allegation against him and what kind of defence he can put in rebuttal thereof. for the same proposition, he has also taken the support of the decision of the hon'ble apex court in surath chandra chakrabarty vs. state of west bengal, reported in 1970 (3) scc548 13. refuting the above contentions, mr.k.chellapandian, learned additional advocate general, would submit that as the petitioner is discharging duty of the doctor as professor of forensic science department in madurai medical college, madurai, he has to conduct postmortem enquiry without fail. therefore, the inspector of police, attached to othakadai police station, sent a letter to the petitioner, who is in-charge of the forensic medicine department, requesting him to come to a place where he found a dead body to conduct postmortem for the purpose of finding out the cause of death. since the petitioner has not shown any response, the inspector of police, attached to othakadai police station, who is supposed to prepare charge sheet and to file first information report as against the accused indicating the cause of death of the deceased, has put to a grave hardship. therefore, the inspector of police, after his request letter sent to the petitioner revoked no response, rightly sent a complaint to the superintendent of police, madurai. considering the allegations levelled against the petitioner in the said complaint, the superintendent of police brought to the notice of the same to the district collector, madurai district, who is the chief officer of the district, issued the impugned notice, dated 16.05.2013, to the petitioner calling upon him to attend the enquiry. in respect of the summon issued against the petitioner under section 110 cr.p.c., it was argued that the said summon having been recalled, the petitioner cannot find fault in the same.14. further, the learned additional advocate general would submit that the district collector being the representative of the government, he is the officer in-charge of all the departments within his district. in this context, in support of his contention, he has relied upon the decision of this court in s.rasalam v. the commissioner, adi dravidar and tribal welfare department (w.p.(md) no.4683 of 2013, dated 13.08.2014, wherein, it has been held that the district collector, who is the officer in-charge of the district, has got a duty to take appropriate action against the subordinate officers of all the departments. therefore, the district collector has rightly decided to hold an enquiry on the complaint given by the inspector of police, attached to othakadai police station. hence, there is nothing wrong in issuing notice to the petitioner, who being a law abiding person, without appearing before the district collector for enquiry, wrongly approached this court challenging the authority of the district collector. therefore, he should be directed to appear before the district collector to complete the enquiry by dismissing the writ petition questioning the collector's power to hold preliminary enquiry.15. with regard to the impugned charge memo, the learned additional advocate general would submit that the petitioner, who is a responsible professor, should have given his explanation to the impugned charge memo explaining the reasons as to why he could not conduct the postmortem on the said date. without giving his explanation to the charge memo, the petitioner, being misguided, has wrongly come to this court as against the well settled legal position that no charge memo can be questioned before this court under article 226 of the constitution of india. on this basis, the learned additional advocate general has pleaded for dismissal of the writ petition.16. since one of the writ petitions challenges the charge memo, on the ground of vagueness, this court deems fit to extract the same as under: ?.that dr.natarajan, while functioning as hod of forensic medicine, madurai medical college, madurai was harsh, hostile and non-cooperative with police personnel and has a tendency to harass police personal and most of the cases related to othakadai police (station) suffered in the form of non-compliance for spot postmortem, delay in exhumation of the body and delay in conducting the post mortem. by his acts, he has paved way for public criticisms on government hospitals and triggering law and order situation and ignite unrest among relatives of the deceased and the public. on the whole, he put the administration in an embarrassed position and thereby he has violated rule 20 of tamil nadu government servant conduct rules, 1973.?.17. a careful reading of the impugned charge memo shows that when the petitioner was functioning as head of the department of forensic medicine, in madurai medical college, madurai, he was harsh, hostile and non-cooperative with police personnel. pausing here for a while, it is pertinent to note that there is no indication with regard to the police personnel, against whom the petitioner was harsh, hostile and he was non-cooperative. again, proceeding further, the charge memo shows that the petitioner has a tendency to harass police personnel and most of the cases related to othakadai police station had suffered legal infirmities due to non-compliance of the request of the inspector for spot postmortem and delay in conducting the postmortem. in this part of the charge memo also, there is no whisper about the police personnel, against whom the petitioner had a tendency to harass him etc. it is a trite law that if a person facing charges is not told clearly and definitely what the allegations are on which the charges are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. in the present case also the only charge put against the petitioner is not capable of being intelligently understood and was not sufficiently definite to furnish materials to the petitioner to defend himself. therefore, in this context, it is useful to refer the ratio laid down by the hon'ble apex court in surath chandra chakrabarty's case (cited supra). the relevant portion reads as follows: ?......the grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. this rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. if a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him......?.18. similarly, the hon'ble apex court, in a recent judgment in union of india v. gyan chand chattar (cited supra), has categorically held as follows: ?.32. in surath chandra chakrabarty v. state of w.b. [(1970) 3 scc548: air1971sc752, this court held that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him and what kind of defence he can put in rebuttal thereof. this court observed as under: ?.5......the grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. this rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. if a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.?. (emphasis added) 33. ..........34. in sawai singh v. state of rajasthan [(1986) 3 scc454:1986. scc (l&s) 662 : air1986sc995, this court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences. 35.in view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. the charges should be specific, definite and giving details of the incident which formed the basis of charges. no enquiry can be sustained on vague charges. enquiry has to be conducted fairly, objectively and not subjectively......?.19. as mentioned above, on a cursory reading of the charge extracted above would show that the petitioner being a delinquent is served with a charge- sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet. hence, the enquiry stands vitiated as it is a violation of the principles of natural justice. therefore, the impugned charge memo, dated 05.06.2013, issued against the petitioner, being vague, undefinite and unspecific, is liable to be set aside. accordingly, the impugned charge memo, dated 05.06.2013, issued by the director of medical education, is set aside.20. while answering the challenge made by the petitioner against the impugned transfer order, dated 12.06.2013, issued by the secretary to government, it would be beneficial to refer to the exceptions to the general guidelines of transfer directed to be followed by the department in g.o.ms.no.10, personnel and administrative reforms (personnel-s) department, dated 07.01.1994. it reads as follows: ?.iii.exceptions to the general guidelines (vii) these guidelines do not apply to transfers of the following types of officers / cases: (a) officers of all india services; (b) heads of department (non-ias) or equivalent officers, (c) personal staff of the governor, the chief minister and other ministers. (d) government servants in group 'd' posts. (e) transfers within the same office provided that a person is not allowed to continue in the same seat for more than three years. (f) in cases where severe allegations are pending enquiry, when it is considered necessary in the public interest and sufficient in lieu of suspension, that the officer may be transferred in that case, transfer shall be effected to a vacant post in another station or to the post where the juniormost person of the same category is working. (g) transfers necessitated on account of any emergency of natural calamity when existing manpower in any area is not adequate to handle the situation, or surplus manpower has to be moved out.?.21. admittedly, as stated above, the petitioner has been slapped with the charge memo, on 05.06.2013, by the director of medical education. however, the ground situation shows that when the petitioner was firstly issued with a charge memo, on 05.06.2013 and then he has been issued with transfer order, on 12.06.2013, transferring him from madurai medical college, madurai, to thanjavur medical college, thanjavur, and posting him as a professor / associate professor of forensic medicine, thanjavur medical college, thanjavur, in the place of dr.gandhi (retired). since the charge memo is preceded with transfer order, the exception carved out in (f) of g.o.ms.no.10 (mentioned supra), in a way clearly brings the case of the respondents in the mischief of exception. however, the transfer order appears to be passed by way of punitive measure as the same could be seen from the face of the transfer order, because the district collector's letter, dated 12.09.2012 and director of medical education's letter, dated 22.04.2013 have also been referred to for issuing the transfer order.22. a careful reading of the impugned transfer order in g.o.(d) no.617, health and family welfare (a1) department, dated 12.06.2013, issued by the secretary to government, shows that it has also referred to two letters, one from the district collector, d.o.lr.no.18 camp/2012, dated 12.09.2012 and another one from the director of medical education letter no.25400/e1/2013, dated 22.04.2013. therefore, it is clear that the said impugned transfer order is passed in lieu of punishment and hence, the same is liable to be set aside. in any event, as mentioned above, the complaint upon which the petitioner is put on charge does not throw any light whatsoever on the definite charge.23. again, taking support of the decision of this court in c.ramanathan v. acting zonal manager, f.c.i., reported in 1980 (i) llj1 the learned counsel for the petitioner would submit that in a similar situation, when a transfer order was passed with mala fide, by way of punishment, it has been held by this court that an order of transfer cannot be issued by way of punishment. this would amount to deliberate attempt to bye-pass all disciplinary machineries and offend the well known principle of audi alteram partem, if ex facie it is clear that the order of transfer was not made for administrative reasons, but was made to achieve collateral purpose, then it is open to the court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer.24. in the instant case, as the impugned order of transfer is passed at the instance of the district collector and also the director of medical education by accepting their letters referred to therein and it could be seen that it is not based on any administrative reason, on the other hand it appears to be motived by malice, the impugned order of transfer is liable to be set aside.25. from the service particulars of the petitioner, dated 11.09.2015, issued by the dean, madurai medical college, madurai, it is seen that when the petitioner was serving as assistant surgeon in government primary health centre in t.cholankurichi, perambalur district, he was transferred on 21.11.2000 to the department of forensic medicine, in madurai medical college, madurai, as a tutor. again he was retained in the same place in the place of assistant professor from 22.11.2001 till 03.12.2004. thereafter, he was transferred to government theni medical college, theni, where he was serving as a reader / associate professor from 03.12.2004 till 19.09.2006. subsequently, he was transferred to madurai medical college, madurai, on 20.09.2006 and he was serving as associate professor till 02.12.2008. again, he was re-designated and posted as additional professor in the same place and he is serving as such till date. all these facts would go to show that now the petitioner has completed nine years of continuous service in one station. therefore, in such circumstances, the impugned order of transfer, which has been passed after nine years has to be construed only as a routine transfer. in such circumstances, the order of transfer could not have been disturbed more particularly, when the impugned order of transfer is brought in the exception (f) to the general guidelines, in g.o.ms.no.10, dated 07.01.1994, had the respondent not cited the two references from the district collector and the director of medical education. as these two letters are motivating factors for transfer, the impugned transfer order is unsustainable.26. however, considering the peculiar facts and circumstances focused by both sides when the learned counsel for the petitioner is able to bring his case under punitive transfer for the reason that the impugned order of transfer has referred to the letters of the district collector and the director of medical education, this court agrees with the submissions made by the learned counsel for the petitioner. in such circumstances, the impugned order of transfer is liable to go partly. accordingly, the same is partly set aside.27. secondly, at the cost of reception it may be mentioned that the petitioner has served for about nine years in one place. in the matter of transfer of government servants, the law is well settled that the courts should not interfere with transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. a government servant holding a transferable post cannot have vested right to remain posted at one place or the other, for he is liable to be transferred from one place to the other. transfer orders issued by the competent authority do not violate any of his legal rights. even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order, instead the affected party should approach the higher authorities in the department. if the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. therefore, this court taking into account that the petitioner has served for nine long years, namely, from 20.09.2006 till date, the secretary to government is at liberty to pass appropriate orders of transfer on administration ground, if so warranted.28. the district collector, madurai district issued summons to the petitioner, under section 110 of the code of criminal procedure, calling upon him to appear for enquiry, on 03.05.2013. however, by cancelling the said summon, he was again called upon for personal enquiry, by notice, dated 20.05.2013. it is not in dispute that the petitioner being a government servant and he is serving as a professor in madurai medical college, his service conditions are governed by the tamil nadu civil services (discipline and appeal) rules, 1955. while so, if there is any allegation against the petitioner, the same could be dealt with under rules 17(a) and 17(b) of the tamil nadu civil services (discipline and appeal) rules, 1955. a district collector is also bound by the laws and for the sake of enjoying primacy in his district, he cannot circumvent the provisions of the tamil nadu civil services (discipline and appeal) rules, which do not empower the district collector to initiate disciplinary proceedings against any medical or non- medical staff working in the government hospitals. therefore, this court has no hesitation to hold that although the district collector is the representative of the government and he is entitled to know the functioning of all the departments within his district, with regard to his jurisdiction or role in regulating the service conditions of the petitioner, whose service conditions are governed by the tamil nadu civil services (discipline and appeal) rules, 1955, he has no jurisdiction to issue the impugned notice calling upon him for enquiry. even if there is any complaint from the inspector of police alleging that the petitioner committed dereliction of duty, the district collector can bring the notice of the competent authority to initiate departmental proceedings for the specific charges framed against the petitioner, leaving that course known to law, in my considered view, the district collector cannot issue any such notice calling upon the petitioner for a personal enquiry. for yet another reason that even if the enquiry is allowed to take place, ultimately, the district collector may not be in a position to pass any final order of punishment as there is no provision enabling him to pass any order of punishment.29. the order, dated 13.08.2014, passed in w.p.(md) no.4683 of 2013, by this court, relied on by the learned additional advocate general to contend that the district collector is the officer in-charge of all the departments within his district and therefore, he is entitled to take action against the petitioner, who is working as a professor in madurai medical college, may not be pressed into service in the present case, since the said order is stayed by the hon'ble division bench of this court. besides, in the said case, a vocational instructor, appointed by the adi dravidar and tribal welfare department, was placed under suspension by the district collector on 19.03.2013. the said suspension order was subsequently ratified by the director of adi dravidar and tribal welfare department, vide proceedings, dated 20.03.2013. when the power of the district collector was challenged, it was questioned before this court that the district collector neither being the appointing authority nor the disciplinary authority, the order of suspension cannot have any legal sanctity. the learned judge while dealing with the matter, has come to the conclusion that the district collector is the representative of the government. he is in-charge of all the departments in his district. while so, the district collector took action against a teacher for his conduct in bringing eight students to the district collectorate, and passed an order of suspension to suspend the teacher from service. subsequently, that suspension order was also ratified by the director of adi dravidar and tribal welfare department. but, in the instant case on hand, the action taken by the district collector was not ratified by the competent authority. therefore, looking at the impugned order calling upon the petitioner to come for personal enquiry is bereft of any legal sanctity. therefore, the impugned notices, dated 16.05.2013 and 20.05.2013, issued by the district collector, madurai, calling upon the petitioner to attend enquiry, are liable to be set aside. to sum up; 30. firstly, the charge memo issued against the petitioner does not give any specific allegation with regard to a particular name of any corpse. secondly, when the director of medical education, chennai, in his letter ref.no.25400/e1/4/2013 dated 22.04.2013 has mentioned that necessary action is taken to initiate disciplinary action against the petitioner under rule 17(b) of the tamil nadu civil services (discipline and appeal) rules for his alleged activities of demanding bribe and ill treating behaviour towards police personnel, the subsequent charge memo issued on 05.06.2013 does not contain any charge with regard to demanding of bribe that also shows that the charge is not only vague but also motivated. in such circumstances, this court has to infer that by subsequently issuing charge memorandum without any charge relating to bribe indicates that the disciplinary authority is convinced that there is no allegation of bribe on the part of the petitioner. similarly, the notice issued by the district collector does not show under what provision he has issued the notice.31. thirdly, the letter issued by the director of medical education that the petitioner will be subjected to enquiry for corruption charges also does not find place in the charge memo, moreso, in the counter affidavits filed by the respondents. all the three documents are indefinite and unusually vague, therefore, the respondents who are not clear in their charge memo were not be in a position to frame clear charges.32. a charge memo issued against a delinquent officer should be precise, definite on the charges for which the delinquent is required to explain. in the charge memo, the disciplinary authority must make out a prima facie case to have an enquiry conducted against the erring official, so that the delinquent would be in a position to give an explanation. if the delinquent fails to give explanation to a definite charge that itself will be a ground to proceed against the delinquent to hold him guilty for not giving full and satisfactory explanation. in this regard, neither the charge memo throws any light nor the notice issued by the district collector prima facie makes out any case for enquiry. all these proceedings are hurriedly proceeded. as a matter of fact, it is not in dispute that the entire episode is originated from the complaint given by the inspector of police, othakadai police station followed by the complaint given by the superintendent of police, madurai. when the complaint given by the inspector of police, othakadai police station has not mentioned the correct specific particulars about the date, month, year, name of the corpse, atleast the superintendent of police, madurai, who has entertained the complaint, should have called for all the particulars before making a complaint to the district collector. that apart, atleast the district collector who has received the complaint by issuing notice should have first of all satisfied himself that there has been a definite cause of action to proceed against the delinquent doctor. finally, the disciplinary authority who has issued the charge memo on the basis of the original complaint given by the inspector of police, othakadai police station could have received more and clear particulars from the complainant with regard to the delay in doing post-mortem of various corpse, but this also has not been done, that shows the original complaint given by the inspector of police, othakadai police station is bereft of materials. similarly and secondly, the notice issued by the district collector, madurai is again bereft of any particulars to call for the enquiry. thirdly, the charge memo issued by the disciplinary authority being vague is fully bereft of any material particulars, and top of all, as highlighted above, the counters filed by the district collector do not throw any light on the instances of the delay in committing any post-mortem. moreover, the other counter affidavit filed by the director of medical education also has failed to substantiate their case from any angle that the charges levelled against the petitioners are valid and supported with documents. in addition thereto, two earlier enquiries held against the petitioner also failed to fix him, therefore, from looking at any angle, none of the impugned orders can stand to the test of reasonableness under article 14 of the constitution of india.33. in the result, (i) w.p.(md) nos.9020 of 2013 is allowed and the impugned notice, dated 16.05.2013, in na.ka.no.c3/27969/2013, and the consequential notice, dated 20.05.2013, in roc.no.21489/2013/c3, issued by the district collector, madurai district, is quashed. (ii) w.p.(md) no.10449 of 2013 is allowed and the impugned charge memo, dated 05.06.2013, in ref.no.28330/sci/3/2013, issued by the director of medical education, is quashed.. (iii) w.p.(md) no.9784 of 2013 is disposed of by giving liberty to the secretary to government to pass appropriate orders of transfer on administration ground, if so warranted, as the petitioner has completed nine long years of service in madurai medical college. no costs. consequently, connected miscellaneous petitions are closed. to:1. the secretary, department of health & family welfare, state of tamil nadu, fort st.george, chennai-600 009. 2.the director of medical education, kilpauk, chennai-600 010. 3.the dean, madurai medical college, madurai, madurai district. 4.the district collector, madurai district, madurai, madurai district. 5.the inspector of police, othakadai police station, othakadai, madurai & district. .

Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

18. 09.2015 CORAM THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD) No.9020 of 2013 and M.P.(MD) Nos.1 & 2 of 2013 and W.P.(MD) No.9784 of 2013 and M.P.(MD) Nos.1 & 2 of 2013 & 1 of 2015 and W.P.(MD) No.10449 of 2013 and M.P.(MD) No.1 of 2013 Dr.G.Natarajan ... Petitioner in all W.Ps. -vs- 1.The District Collector Madurai, Madurai District 2.The Dean Madurai Medical College Madurai 3.The Inspector of Police Oothakadai Police Station Madurai ... Respondents in W.P.(MD) No.9020 of 2013 4.The State of Tamil Nadu rep.by its Secretary Department of Health & Family Welfare Fort St.George, Chennai-600 009 5.The Director of Medical Education Kilpauk, Chennai-600 010 6.The Dean Madurai Medical College Madurai, Madurai District 7.The District Collector Madurai District Madurai, Madurai District 8.S.Annaraj The Inspector of Police Othakadai Police Station Othakadai, Madurai & District ... Respondents in W.P.(MD) Nos.10449 of 2013 & W.P.(MD) No.9784 of 2013 PRAYER (W.P.(MD) No.9020 of 2013): Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorarified mandamus to call for the records relating to the impugned notice issued by the first respondent in his proceedings Na.Ka.No.C3/27969/2013, dated 16.05.2013, and the consequential notice issued by the first respondent in his proceedings Roc.No.21489/2013/C3, dated 20.05.2013, and quash the same as illegal. PRAYER (W.P.(MD) No.9784 of 2013): Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for the records relating to the (D) No.617 (Health and Family Welfare ?. A1) Department, dated 12.06.2013 and the consequential order issued by the third respondent, Dean in Ref.No.6484/E1/1/2013, dated 14.06.2013, quash the same. PRAYER (W.P.(MD) No.10449 of 2013): Writ Petition is filed under Article 226 of the Constitution of India to issue a writ of certiorari to call for the records relating to the impugned charge memo, issued by the 2nd respondent, Director of Medical Education, in Ref.No.28330/SCI/3/2013, dated 05.06.2013 and to quash the same. !For Petitioner : Mr.Isaac Mohanlal (in W.P.MD) No.10449 & 9784 of 2013) For Petitioner : Mr.Md.Imran (in W.P.MD) No.9020 of 2013) for M/s.Ajmal Associates ^For Respondents : Mr.K.Chellapandian, Addl.Adv.General (in W.P.MD) Nos.10449 & 9020 of 2013) Assisted by Mr.R.Anandharaj, Govt.Adv. For R1 to R4 : Mr.K.Chellapandian, Addl.Adv.General (in W.P.MD) No.9784 of 2013) Assisted by Mr.R.Anandharaj, Govt.Adv. For 5th Respondent : Mr.R.Anandharaj, Govt.Adv. (in W.P.MD) No.9784 of 2013) :C O M M O N

ORDER

Since the relief sought for in all these writ petitions are interconnected and identical, all these writ petitions were clubbed and heard together and are disposed of by this common order.

2. The petitioner Dr.G.Natarajan, who is serving as a Professor and Head of the Department of Forensic Medicine, in Madurai Medical College, Madurai, has filed these three writ petitions with the following prayer: (i) W.P.(MD) No.9020 of 2013 is filed to quash the impugned notice, in Na.Ka.No.C3/27969/2013, dated 16.05.2013, and the consequential notice in Roc.No.21489/2013/C3, dated 20.05.2013, issued by the District Collector, Madurai District, whereby and whereunder the District Collector, called upon petitioner to attend enquiry with regard to certain complaints received from some quarters. (ii) W.P.(MD) No.9784 of 2013 is filed to quash the proceedings issued by the Secretary to Government, in G.O.(D) No.617 Health and Family Welfare (A1) Department, dated 12.06.2013 and the consequential relieving order, issued by the Dean, Madurai Medical College, Madurai, in Ref.No.6484/E1/1/2013, dated 14.06.2013, whereby and whereunder the petitioner has been transferred and posted as Professor of Forensic Medicine, Thanjavur Medical College, Thanjavur in the place of Dr.Gandhi (retired). (iii) W.P.(MD) No.10449 of 2013 is filed to quash the impugned charge memo, in Ref.No.28330/SCI/3/2013, dated 05.06.2013 issued by the Director of Medical Education, containing charges alleging that when the petitioner was functioning as Head of the Department of Forensic Medicine, he was harsh, hostile and non-cooperative with police personnel and he has a tendency to harass police personal and most of the cases related to Othakadai Police Station are suffered in the form of non-compliance for spot postmortem, delay in exhumation of the body and delay in conducting the postmortem etc.

3. Mr.Isaac Mohanlal, learned counsel appearing for the petitioner in W.P.(MD) Nos.9784 and 10449 of 2013, assailing the impugned charge memo, dated 05.06.2013, would submit that the petitioner, initially after joining the medical service as Assistant Surgeon, on 20.04.2000, in the Primary Health Centre, Perambalur District, assumed charge as Tutor of Forensic Medicine at Madurai Medical College on 22.11.2000 and thereafter he got promotion as Assistant Professor in Forensic Medicine on 22.11.2001. Again, after five years, he reached the position of Associate Professor on 20.09.2006 and within two years therefrom he was re-designated as Professor on 03.12.2008.

4. When the petitioner has been serving as such in Madurai Medical College, Madurai, during 2012, the Inspector of Police, attached to Othakadai Police Station, for the reasons best known to him, made some false complaints against the petitioner to the Director of Medical Education and the Dean of Madurai Medical College, alleging that he did not co-operate for the postmortem scheduled to be conducted on 03.07.2012 and because of his non- cooperation, the postmortem was conducted belatedly on 05.07.2012.

5. With regard to the said complaint, the Dean of the Madurai Medical College constituted an enquiry committee vide proceedings, dated 24.07.2012 and called upon the petitioner to attend enquiry on 31.07.2012 at 02.00 p.m. Pursuant to the said proceedings, he attended the enquiry and submitted his explanation. The enquiry officer, after completion of the enquiry, filed his report stating that the allegations levelled against the petitioner were not proved.

6. Subsequently, the Inspector of Police, attached to Othakadai Police Station, made the same complaint to the Superintendent of Police, Madurai, who in turn forwarded the same to the District Collector, Madurai District, on 15.07.2012. The District Collector, Madurai District, on receipt of the same forwarded the same to the Dean, Madurai Medical College, Madurai, vide proceedings, dated 01.08.2012, recommending to conduct an enquiry on the allegations made against the petitioner.

7. The Dean, Madurai Medical College, Madurai, accepting the recommendation of the District Collector, Madurai District, constituted an enquiry committee consists of two members. The petitioner attended the enquiry conducted on 08.09.2012 and submitted his explanation. The Enquiry Officers, after completion of the enquiry, submitted a report on 27.09.2012, finding that the delay in conducting the postmortem was attributable to the Inspector of Police, attached to Othakadai Police Station and the petitioner had no role in the alleged delay.

8. Further, the learned counsel for the petitioner would submit that when the matter stood thus, on 27.04.2013, the District Collector, Madurai District, again issued a summon to the petitioner, exercising his power under Section 110 of the Code of Criminal Procedure Code, which is meant only for holding enquiry against habitual offenders, habitual robbers, house-breakers and thief or forgers. Section 110 Cr.P.C., envisages that when an Executive Magistrate receives information that there is within his local jurisdiction a person who- (a) is by habit a robber, house- breaker, thief, or forger, or, (b) is by habit a receiver of stolen property knowing the same to have been stolen, or (c) habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or (d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code (45 of 1860 ), or under section 489-A, section 489-B, section 489-C or section 489-D of that Code, or (e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or (f) ........... (g) ........... such Magistrate may require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years.

9. The learned counsel would further submit that when the petitioner has been serving as a Professor of Forensic Medicine in Madurai Medical College, Madurai, the District Collector, Madurai District, wrongly exercising his arbitrary power, that too, under Section 110 Cr.P.C., which is not meant for respectable persons like Doctor, who discharges his responsible life saving duties, on 27.04.2013, summoned the petitioner for enquiry. As a result, the petitioner's reputation is diminished and at peril.

10. According to the learned counsel, the District Collector has no jurisdiction or power to summon the petitioner, who is serving as a Professor of Forensic Medicine. That apart, if there is any complaint against the petitioner, in accordance with law, for which the Medical Department alone is entitled to initiate proceedings, as per Rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955 and not the District Collector, who is a foreigner to the Medical Department.

11. The learned counsel for the petitioner would further submit that a reading of the charge memo, dated 05.06.2013, issued by the Director of Medical Education would show that it does not throw any light whatsoever on the aspect whether the petitioner has committed any misbehaviour or hostile or he was not co-operated with the Police personnel in respect of any postmortem of any corps or any particular individual. That apart, the charge levelled against the petitioner, in the charge memo, dated 05.06.2013, does not mention about the date, month, year or name of the dead body or from which jurisdiction it has been forwarded to the petitioner for conducting postmortem while so, in such circumstances, it would be highly difficult for the petitioner even to submit his explanation. When the petitioner has been conducting postmortem on various dead bodies everyday, unless there is a specific mention in the charge memo with regard to the name of the dead body, date, month and year, on which date the dead body was forwarded by the concerned Inspector of Police to the petitioner, not only the petitioner, nobody can give his explanation in response to such a charge memo. Therefore, the vague charge memo, in the eye of law, is unsustainable and it is liable to be set aside, he pleaded.

12. In this regard, the learned counsel for the petitioner, referring to the decision in Union of India v. Gyan chand Chattar, reported in (2009) 12 SCC78 would submit that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as to what is the allegation against him and what kind of defence he can put in rebuttal thereof. For the same proposition, he has also taken the support of the decision of the Hon'ble Apex Court in Surath Chandra Chakrabarty vs. State of West Bengal, reported in 1970 (3) SCC548 13. Refuting the above contentions, Mr.K.Chellapandian, learned Additional Advocate General, would submit that as the petitioner is discharging duty of the Doctor as Professor of Forensic Science Department in Madurai Medical College, Madurai, he has to conduct postmortem enquiry without fail. Therefore, the Inspector of Police, attached to Othakadai Police Station, sent a letter to the petitioner, who is in-charge of the Forensic Medicine Department, requesting him to come to a place where he found a dead body to conduct postmortem for the purpose of finding out the cause of death. Since the petitioner has not shown any response, the Inspector of Police, attached to Othakadai Police Station, who is supposed to prepare charge sheet and to file first information report as against the accused indicating the cause of death of the deceased, has put to a grave hardship. Therefore, the Inspector of Police, after his request letter sent to the petitioner revoked no response, rightly sent a complaint to the Superintendent of Police, Madurai. Considering the allegations levelled against the petitioner in the said complaint, the Superintendent of Police brought to the notice of the same to the District Collector, Madurai District, who is the Chief Officer of the District, issued the impugned notice, dated 16.05.2013, to the petitioner calling upon him to attend the enquiry. In respect of the summon issued against the petitioner under Section 110 Cr.P.C., it was argued that the said summon having been recalled, the petitioner cannot find fault in the same.

14. Further, the learned Additional Advocate General would submit that the District Collector being the representative of the Government, he is the officer in-charge of all the Departments within his District. In this context, in support of his contention, he has relied upon the decision of this Court in S.Rasalam v. The Commissioner, Adi Dravidar and Tribal Welfare Department (W.P.(MD) No.4683 of 2013, dated 13.08.2014, wherein, it has been held that the District Collector, who is the officer in-charge of the District, has got a duty to take appropriate action against the subordinate officers of all the Departments. Therefore, the District Collector has rightly decided to hold an enquiry on the complaint given by the Inspector of Police, attached to Othakadai Police Station. Hence, there is nothing wrong in issuing notice to the petitioner, who being a law abiding person, without appearing before the District Collector for enquiry, wrongly approached this Court challenging the authority of the District Collector. Therefore, he should be directed to appear before the District Collector to complete the enquiry by dismissing the writ petition questioning the Collector's power to hold preliminary enquiry.

15. With regard to the impugned charge memo, the learned Additional Advocate General would submit that the petitioner, who is a responsible Professor, should have given his explanation to the impugned charge memo explaining the reasons as to why he could not conduct the postmortem on the said date. Without giving his explanation to the charge memo, the petitioner, being misguided, has wrongly come to this Court as against the well settled legal position that no charge memo can be questioned before this Court under Article 226 of the Constitution of India. On this basis, the learned Additional Advocate General has pleaded for dismissal of the writ petition.

16. Since one of the writ petitions challenges the charge memo, on the ground of vagueness, this Court deems fit to extract the same as under: ?.that Dr.Natarajan, while functioning as HOD of Forensic Medicine, Madurai Medical College, Madurai was harsh, hostile and non-cooperative with police personnel and has a tendency to harass police personal and most of the cases related to Othakadai Police (Station) suffered in the form of non-compliance for spot postmortem, delay in exhumation of the body and delay in conducting the Post Mortem. By his acts, he has paved way for public criticisms on Government Hospitals and triggering Law and Order situation and ignite unrest among relatives of the deceased and the Public. On the whole, he put the administration in an embarrassed position and thereby he has violated rule 20 of Tamil Nadu Government Servant Conduct Rules, 1973.?.

17. A careful reading of the impugned charge memo shows that when the petitioner was functioning as Head of the Department of Forensic Medicine, in Madurai Medical College, Madurai, he was harsh, hostile and non-cooperative with police personnel. Pausing here for a while, it is pertinent to note that there is no indication with regard to the Police personnel, against whom the petitioner was harsh, hostile and he was non-cooperative. Again, proceeding further, the charge memo shows that the petitioner has a tendency to harass police personnel and most of the cases related to Othakadai Police Station had suffered legal infirmities due to non-compliance of the request of the Inspector for spot postmortem and delay in conducting the postmortem. In this part of the charge memo also, there is no whisper about the Police personnel, against whom the petitioner had a tendency to harass him etc. It is a trite law that if a person facing charges is not told clearly and definitely what the allegations are on which the charges are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. In the present case also the only charge put against the petitioner is not capable of being intelligently understood and was not sufficiently definite to furnish materials to the petitioner to defend himself. Therefore, in this context, it is useful to refer the ratio laid down by the Hon'ble Apex Court in Surath Chandra Chakrabarty's case (cited supra). The relevant portion reads as follows: ?......the grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him......?.

18. Similarly, the Hon'ble Apex Court, in a recent Judgment in Union of India v. Gyan chand Chattar (cited supra), has categorically held as follows: ?.32. In Surath Chandra Chakrabarty v. State of W.B. [(1970) 3 SCC548: AIR1971SC752, this Court held that it is not permissible to hold an enquiry on a vague charge as the same does not give a clear picture to the delinquent to make an effective defence because he may not be aware as what is the allegation against him and what kind of defence he can put in rebuttal thereof. This Court observed as under: ?.5......The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has also to be stated. This rule embodies a principle which is one of the basic contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.?. (emphasis added) 33. ..........

34. In Sawai Singh v. State of Rajasthan [(1986) 3 SCC454:

1986. SCC (L&S) 662 : AIR1986SC995, this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences. 35.In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively......?.

19. As mentioned above, on a cursory reading of the charge extracted above would show that the petitioner being a delinquent is served with a charge- sheet without giving specific and definite charge and no statement of allegation is served along with the charge-sheet. Hence, the enquiry stands vitiated as it is a violation of the principles of natural justice. Therefore, the impugned charge memo, dated 05.06.2013, issued against the petitioner, being vague, undefinite and unspecific, is liable to be set aside. Accordingly, the impugned charge memo, dated 05.06.2013, issued by the Director of Medical Education, is set aside.

20. While answering the challenge made by the petitioner against the impugned transfer order, dated 12.06.2013, issued by the Secretary to Government, it would be beneficial to refer to the exceptions to the general guidelines of transfer directed to be followed by the Department in G.O.Ms.No.10, Personnel and Administrative Reforms (Personnel-S) Department, dated 07.01.1994. It reads as follows: ?.III.Exceptions to the General Guidelines (vii) These guidelines do not apply to transfers of the following types of officers / cases: (a) Officers of All India Services; (b) Heads of Department (non-IAS) or equivalent officers, (c) Personal staff of the Governor, the Chief Minister and other Ministers. (d) Government servants in Group 'D' posts. (e) Transfers within the same office provided that a person is not allowed to continue in the same seat for more than three years. (f) In cases where severe allegations are pending enquiry, when it is considered necessary in the public interest and sufficient in lieu of suspension, that the officer may be transferred in that case, transfer shall be effected to a vacant post in another station or to the post where the juniormost person of the same category is working. (g) Transfers necessitated on account of any emergency of natural calamity when existing manpower in any area is not adequate to handle the situation, or surplus manpower has to be moved out.?.

21. Admittedly, as stated above, the petitioner has been slapped with the charge memo, on 05.06.2013, by the Director of Medical Education. However, the ground situation shows that when the petitioner was firstly issued with a charge memo, on 05.06.2013 and then he has been issued with transfer order, on 12.06.2013, transferring him from Madurai Medical College, Madurai, to Thanjavur Medical College, Thanjavur, and posting him as a Professor / Associate Professor of Forensic Medicine, Thanjavur Medical College, Thanjavur, in the place of Dr.Gandhi (retired). Since the charge memo is preceded with transfer order, the exception carved out in (f) of G.O.Ms.No.10 (mentioned supra), in a way clearly brings the case of the respondents in the mischief of exception. However, the transfer order appears to be passed by way of punitive measure as the same could be seen from the face of the transfer order, because the District Collector's letter, dated 12.09.2012 and Director of Medical Education's letter, dated 22.04.2013 have also been referred to for issuing the transfer order.

22. A careful reading of the impugned transfer order in G.O.(D) No.617, Health and Family Welfare (A1) Department, dated 12.06.2013, issued by the Secretary to Government, shows that it has also referred to two letters, one from the District Collector, D.O.Lr.No.18 Camp/2012, dated 12.09.2012 and another one from the Director of Medical Education letter No.25400/E1/2013, dated 22.04.2013. Therefore, it is clear that the said impugned transfer order is passed in lieu of punishment and hence, the same is liable to be set aside. In any event, as mentioned above, the complaint upon which the petitioner is put on charge does not throw any light whatsoever on the definite charge.

23. Again, taking support of the decision of this Court in C.Ramanathan v. Acting Zonal Manager, F.C.I., reported in 1980 (I) LLJ1 the learned counsel for the petitioner would submit that in a similar situation, when a transfer order was passed with mala fide, by way of punishment, it has been held by this Court that an order of transfer cannot be issued by way of punishment. This would amount to deliberate attempt to bye-pass all disciplinary machineries and offend the well known principle of audi alteram partem, if ex facie it is clear that the order of transfer was not made for administrative reasons, but was made to achieve collateral purpose, then it is open to the Court to crack the shell of innocuousness which wraps the order of transfer and by piercing such a veil, find out the rival purpose behind the order of transfer.

24. In the instant case, as the impugned order of transfer is passed at the instance of the District Collector and also the Director of Medical Education by accepting their letters referred to therein and it could be seen that it is not based on any administrative reason, on the other hand it appears to be motived by malice, the impugned order of transfer is liable to be set aside.

25. From the service particulars of the petitioner, dated 11.09.2015, issued by the Dean, Madurai Medical College, Madurai, it is seen that when the petitioner was serving as Assistant Surgeon in Government Primary Health Centre in T.Cholankurichi, Perambalur District, he was transferred on 21.11.2000 to the Department of Forensic Medicine, in Madurai Medical College, Madurai, as a Tutor. Again he was retained in the same place in the place of Assistant Professor from 22.11.2001 till 03.12.2004. Thereafter, he was transferred to Government Theni Medical College, Theni, where he was serving as a Reader / Associate Professor from 03.12.2004 till 19.09.2006. Subsequently, he was transferred to Madurai Medical College, Madurai, on 20.09.2006 and he was serving as Associate Professor till 02.12.2008. Again, he was re-designated and posted as Additional Professor in the same place and he is serving as such till date. All these facts would go to show that now the petitioner has completed nine years of continuous service in one Station. Therefore, in such circumstances, the impugned order of transfer, which has been passed after nine years has to be construed only as a routine transfer. In such circumstances, the order of transfer could not have been disturbed more particularly, when the impugned order of transfer is brought in the exception (f) to the General Guidelines, in G.O.Ms.No.10, dated 07.01.1994, had the respondent not cited the two references from the District Collector and the Director of Medical Education. As these two letters are motivating factors for transfer, the impugned transfer order is unsustainable.

26. However, considering the peculiar facts and circumstances focused by both sides when the learned counsel for the petitioner is able to bring his case under punitive transfer for the reason that the impugned order of transfer has referred to the letters of the District Collector and the Director of Medical Education, this Court agrees with the submissions made by the learned counsel for the petitioner. In such circumstances, the impugned order of transfer is liable to go partly. Accordingly, the same is partly set aside.

27. Secondly, at the cost of reception it may be mentioned that the petitioner has served for about nine years in one place. In the matter of transfer of Government Servants, the law is well settled that the Courts should not interfere with transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory Rule or on the ground of mala fide. A Government servant holding a transferable post cannot have vested right to remain posted at one place or the other, for he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead the affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. Therefore, this Court taking into account that the petitioner has served for nine long years, namely, from 20.09.2006 till date, the Secretary to Government is at liberty to pass appropriate orders of transfer on administration ground, if so warranted.

28. The District Collector, Madurai District issued summons to the petitioner, under Section 110 of the Code of Criminal Procedure, calling upon him to appear for enquiry, on 03.05.2013. However, by cancelling the said summon, he was again called upon for personal enquiry, by notice, dated 20.05.2013. It is not in dispute that the petitioner being a Government servant and he is serving as a Professor in Madurai Medical College, his service conditions are governed by the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. While so, if there is any allegation against the petitioner, the same could be dealt with under Rules 17(a) and 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955. A District Collector is also bound by the laws and for the sake of enjoying primacy in his District, he cannot circumvent the provisions of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which do not empower the District Collector to initiate disciplinary proceedings against any medical or non- medical staff working in the Government Hospitals. Therefore, this Court has no hesitation to hold that although the District Collector is the representative of the Government and he is entitled to know the functioning of all the Departments within his District, with regard to his jurisdiction or role in regulating the service conditions of the petitioner, whose service conditions are governed by the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, he has no jurisdiction to issue the impugned notice calling upon him for enquiry. Even if there is any complaint from the Inspector of Police alleging that the petitioner committed dereliction of duty, the District Collector can bring the notice of the competent authority to initiate departmental proceedings for the specific charges framed against the petitioner, leaving that course known to law, in my considered view, the District Collector cannot issue any such notice calling upon the petitioner for a personal enquiry. For yet another reason that even if the enquiry is allowed to take place, ultimately, the District Collector may not be in a position to pass any final order of punishment as there is no provision enabling him to pass any order of punishment.

29. The Order, dated 13.08.2014, passed in W.P.(MD) No.4683 of 2013, by this Court, relied on by the learned Additional Advocate General to contend that the District Collector is the officer in-charge of all the Departments within his District and therefore, he is entitled to take action against the petitioner, who is working as a Professor in Madurai Medical College, may not be pressed into service in the present case, since the said order is stayed by the Hon'ble Division Bench of this Court. Besides, in the said case, a Vocational Instructor, appointed by the Adi Dravidar and Tribal Welfare Department, was placed under suspension by the District Collector on 19.03.2013. The said suspension order was subsequently ratified by the Director of Adi Dravidar and Tribal Welfare Department, vide proceedings, dated 20.03.2013. When the power of the District Collector was challenged, it was questioned before this Court that the District Collector neither being the appointing authority nor the disciplinary authority, the order of suspension cannot have any legal sanctity. The learned Judge while dealing with the matter, has come to the conclusion that the District Collector is the representative of the Government. He is in-charge of all the Departments in his District. While so, the District Collector took action against a Teacher for his conduct in bringing eight students to the District Collectorate, and passed an order of suspension to suspend the Teacher from service. Subsequently, that suspension order was also ratified by the Director of Adi Dravidar and Tribal Welfare Department. But, in the instant case on hand, the action taken by the District Collector was not ratified by the competent authority. Therefore, looking at the impugned order calling upon the petitioner to come for personal enquiry is bereft of any legal sanctity. Therefore, the impugned notices, dated 16.05.2013 and 20.05.2013, issued by the District Collector, Madurai, calling upon the petitioner to attend enquiry, are liable to be set aside. To sum up; 30. Firstly, the charge memo issued against the petitioner does not give any specific allegation with regard to a particular name of any corpse. Secondly, when the Director of Medical Education, Chennai, in his letter Ref.No.25400/E1/4/2013 dated 22.04.2013 has mentioned that necessary action is taken to initiate disciplinary action against the petitioner under rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules for his alleged activities of demanding bribe and ill treating behaviour towards police personnel, the subsequent charge memo issued on 05.06.2013 does not contain any charge with regard to demanding of bribe that also shows that the charge is not only vague but also motivated. In such circumstances, this Court has to infer that by subsequently issuing charge memorandum without any charge relating to bribe indicates that the disciplinary authority is convinced that there is no allegation of bribe on the part of the petitioner. Similarly, the notice issued by the District Collector does not show under what provision he has issued the notice.

31. Thirdly, the letter issued by the Director of Medical Education that the petitioner will be subjected to enquiry for corruption charges also does not find place in the charge memo, moreso, in the counter affidavits filed by the respondents. All the three documents are indefinite and unusually vague, therefore, the respondents who are not clear in their charge memo were not be in a position to frame clear charges.

32. A charge memo issued against a delinquent officer should be precise, definite on the charges for which the delinquent is required to explain. In the charge memo, the disciplinary authority must make out a prima facie case to have an enquiry conducted against the erring official, so that the delinquent would be in a position to give an explanation. If the delinquent fails to give explanation to a definite charge that itself will be a ground to proceed against the delinquent to hold him guilty for not giving full and satisfactory explanation. In this regard, neither the charge memo throws any light nor the notice issued by the District Collector prima facie makes out any case for enquiry. All these proceedings are hurriedly proceeded. As a matter of fact, it is not in dispute that the entire episode is originated from the complaint given by the Inspector of Police, Othakadai Police Station followed by the complaint given by the Superintendent of Police, Madurai. When the complaint given by the Inspector of Police, Othakadai Police Station has not mentioned the correct specific particulars about the date, month, year, name of the corpse, atleast the Superintendent of Police, Madurai, who has entertained the complaint, should have called for all the particulars before making a complaint to the District Collector. That apart, atleast the District Collector who has received the complaint by issuing notice should have first of all satisfied himself that there has been a definite cause of action to proceed against the delinquent doctor. Finally, the disciplinary authority who has issued the charge memo on the basis of the original complaint given by the Inspector of Police, Othakadai Police Station could have received more and clear particulars from the complainant with regard to the delay in doing post-mortem of various corpse, but this also has not been done, that shows the original complaint given by the Inspector of Police, Othakadai Police Station is bereft of materials. Similarly and secondly, the notice issued by the District Collector, Madurai is again bereft of any particulars to call for the enquiry. Thirdly, the charge memo issued by the disciplinary authority being vague is fully bereft of any material particulars, and top of all, as highlighted above, the counters filed by the District Collector do not throw any light on the instances of the delay in committing any post-mortem. Moreover, the other counter affidavit filed by the Director of Medical Education also has failed to substantiate their case from any angle that the charges levelled against the petitioners are valid and supported with documents. In addition thereto, two earlier enquiries held against the petitioner also failed to fix him, therefore, from looking at any angle, none of the impugned orders can stand to the test of reasonableness under Article 14 of the Constitution of India.

33. In the result, (i) W.P.(MD) Nos.9020 of 2013 is allowed and the impugned notice, dated 16.05.2013, in Na.Ka.No.C3/27969/2013, and the consequential notice, dated 20.05.2013, in Roc.No.21489/2013/C3, issued by the District Collector, Madurai District, is quashed. (ii) W.P.(MD) No.10449 of 2013 is allowed and the impugned charge memo, dated 05.06.2013, in Ref.No.28330/SCI/3/2013, issued by the Director of Medical Education, is quashed.. (iii) W.P.(MD) No.9784 of 2013 is disposed of by giving liberty to the Secretary to Government to pass appropriate orders of transfer on administration ground, if so warranted, as the petitioner has completed nine long years of service in Madurai Medical College. No costs. Consequently, connected miscellaneous petitions are closed. To:

1. The Secretary, Department of Health & Family Welfare, State of Tamil Nadu, Fort St.George, Chennai-600 009. 2.The Director of Medical Education, Kilpauk, Chennai-600 010. 3.The Dean, Madurai Medical College, Madurai, Madurai District. 4.The District Collector, Madurai District, Madurai, Madurai District. 5.The Inspector of Police, Othakadai Police Station, Othakadai, Madurai & District. .