IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.07.2010 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.1373 of 2010 M.P.Rao ... Petitioner Versus 1.The Director General, Central Industrial Security Force, Block No.13, C.G.O. Complex, Lodhi Road, New Delhi - 3. 2.The Inspector General, Central Industrial Security Force, Southern Sector, CH.P.T. Campus, Chennai. 3.The Deputy Inspector General, Central Industrial Security Force, Neyveli Lignite Corporation, Neyveli. 4.The Group Commandant, Central Industrial Security Force, Group Head Quarters, Rajaji Bhavan, Besant Nagar, Chennai - 600 090. ... Respondents Writ Petition filed under Article 226 of Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the 3rd respondent in his order No.V-15014/NLC/Maj/MPR/2009/12537, dated 06.11.2009 and to quash the same and to direct the respondents to regularize the services of period from 30.01.2005 to 14.05.2009 as on duty and to pay back wages, promotion and all monetary benefits. For Petitioner : Mr.A.S.Mujibur Rahman For Respondents : Mrs.Sudharshana Sunder https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner has challenged the order passed by the 3rd respondent which declared the petitioner's absence from duty from 30.01.2005 to 14.05.2009. The said intervening period from the date of compulsory retirement from service to the date of rejoining of service was treated as 'Dies Non' for all purposes as envisaged in Rule 55 of CISF Rules 2001. By the said order he was also denied pay and allowances for the said period and his representations dated 13.07.2009 and 26.10.2009 were also rejected by the 3rd respondent. 2. The petitioner was enlisted as Sub-Inspector in the year 1985 at Chennai and later on he was transferred to Visakhapattinam during the month of July, 2003. The petitioner was charged with four charges on 12.11.2003 given under Rule 36 of CISF Rules 2001. The charges are relating to for letting out a vehicle which carried out pilferage of BF Coke on 11.07.2003 and four officials were also charged. 3. An Enquiry was conducted and all the charges were proved against the petitioner and other officials. By an order dated 29.01.2005, the 3rd respondent imposed a penalty of compulsory retirement from service with all full pension and gratuity benefits. The period of suspension from 01.08.2003 till the date of the order was regularised as "not on duty" and the appeal filed to the 1st respondent was also dismissed. 4. Aggrieved by the 1st respondent's order, Writ Petition filed in W.P.No.40062 of 2006 and the same was disposed of by the Division Bench of this Court by an order dated 27.04.2009. Paragraphs 4 to 6 of the order are extracted as follows:- "4. Insofar as the first two charges are concerned, we have perused the order of the Director General of CISF dated 13.05.2005, wherein the compulsory retirement issued against one R.P.Singh, who was also issued with the first charge, was let off with a punishment of reduction of pay by three stages in the time scale of pay for a period of two years without cumulative effect and without affecting his pensionary benefits. Mr.B.Shanthakumar, learned counsel appearing for the respondent, would submit that the said R.P.Singh was posted in the B.C. Gate, where the occurrence had taken place, only on 11.07.2003 and considering his dereliction of duty for one day, the revisional authority had modified the punishment of compulsory retirement into reduction of pay. However, in the case of the petitioner, he https://hcservices.ecourts.gov.in/hcservices/ was working in the same gate for over a period of two years i.e. from 30.05.2001 to 11.07.2003 and therefore, he cannot be equated with the said R.P.Singh. In our opinion, the said submission cannot be accepted. Though in the Article of Charges 1 and 2, it is mentioned that the petitioner was performing his duty with effect from 30.05.2001 to 11.07.2003 in INT Wing, the incident is in respect of misconduct on 11.07.2003 only. For the very same incident only, R.P.Singh was also issued with a charge memo and he was inflicted with lesser punishment. In our opinion, the petitioner's claim for a similar treatment meted out to the said R.P.Singh could have been accepted, as we find there is no marked difference in the allegation. 5. Insofar as the third Article of Charge is concerned, it is as vague as it could be. The said charge reads that while the petitioner performing the duties of incharge with effect from 30.05.2001 to 11.07.2003 had failed to take appropriate action to stop malpractice in the slag carrying vehicles when it was informed to him before the incident occurred on 11.07.20003. There are absolutely no details as to the dates on which the petitioner failed to take appropriate action to stop malpractice. If, by that charge, the occurrence date is taken as 11.07.2003, it relates to Article of Charges 1 and 2 only and for the said of occurrence, R.P.Singh had been inflicted with lesser punishment. Insofar as Article of Charge No.4 is concerned, again the very same charge was issued against one Constable Bhimaiah, but the same was, later on, dropped. 6. In the circumstances, we are inclined to hold that Article of Charge No.3 cannot be held to be proved or could be applied against the petitioner and insofar as Article of Charges 1,2 and 4 are concerned, as similarly placed persons were treated differently, the petitioner is entitled to the benefit of lesser punishment imposed on R.P.Singh by the Director General in his order dated 13.05.2005. In our opinion, the petitioner had been discriminated in imposing the punishment. In view of the proved charges, the penalty of compulsory retirement cannot be sustained and rather, the penalty of reduction of https://hcservices.ecourts.gov.in/hcservices/ pay by three stages in the time scale of pay for a period of two years without cumulative effect, which will not adversely affect his pension, alone could be ordered." By the said order, this Court modified the punishment imposed on the petitioner and the penalty of compulsory retirement was set aside on the ground of discrimination that lesser punishment was imposed on Mr.R.P.Singh by the 1st respondent by his order dated 13.05.2005. 5. Pursuant to the order passed by the Division Bench of this Court, the petitioner was reinstated on 15.05.2009. On 13.07.2009, the petitioner made a representation to the 3rd respondent requesting the 3rd respondent for continuity of service, back wages and all other monetary benefits from the date of suspension till date of reinstatement i.e. 30.01.2005 to 14.05.2009. The said representation was also followed by another representation dated 26.10.2009 as a reply to the show cause notice issued by the 3rd respondent on 16.10.2009. By the impugned order dated 06.11.2009, the petitioner's claim was rejected and questioning the same the present Writ Petition has been filed. 6. Mr.A.S.Mujibur Rahman, learned counsel for the petitioner contended that the petitioner is entitled to all benefits including continuity of service from the date of suspension till the date of reinstatement, as the Division Bench of this Court exonerated the petitioner from all the charges made against him. However, without considering the Judgment of the Division Bench of this Court in proper perspective, the petitioner's claim was unreasonably rejected. The learned counsel at length dealt with the charges made against him and as to how the Division Bench of this Court dealt with the matter. He particularly referred the different treatment given to Mr.K.P.Singh by the 1st respondent for the same charges whereas the same was denied to the petitioner. The learned Counsel referring to paragraph 4 of the order passed by this Court, submitted that as far as Charge No.3 is concerned, the same was ordered to be dropped as the Court found absolutely no details as to date on which the petitioner's failed to take appropriate action. As far as Charge No.4 is concerned, the Charge was dropped in respect of Mr.Bhimaiah, Constable and therefore, the same benefits should also be given to the petitioner. Paragraph 6 of the order says that Article of Charge No.3 could not be held to be proved or could be applied against the petitioner. By relying upon the Judgment, the learned counsel submits that the petitioner is deemed to have been exonerated. Therefore, the period from the date of suspension till the date of reinstatement cannot be treated as "Dies Non" as per Rule 55 of the Central Industrial Security Force Rules, 2001. 7. On the other hand, Mrs.S.Sudharshana Sunder, learned counsel https://hcservices.ecourts.gov.in/hcservices/ for the respondent supported the impugned order stating that pursuant to the orders passed by the Division Bench of this Court and also based on the representations of the petitioner the impugned order has been passed. The learned counsel pointed out that by contending that the petitioner was exonerated from the charges, the petitioner is attempting to modify the Division Bench order and that cannot be done. She further pointed out that leniency was shown to Mr.R.P.Singh because there was a supervisory failure on his part and he was posted on the particular Gate only on 11.07.2003 on which date the occurrence took place. Considering those materials alone, the 1st respondent took lenient view and the officer was reinstated on 13.05.2005. 8. A perusal of the records would show that for the same charges, the petitioner as well as Mr.R.P.Singh were charged and they were compulsorily retired from services by the 3rd respondent. The appeal preferred by both Mr.R.P.Singh and the petitioner were rejected by the 2nd respondent and on revision, Mr. R.P.Singh was shown leniency in the punishment and was reinstated on 13.05.2005 whereas the revision filed by the petitioner was rejected. Challenging the revision order, the petitioner approached this Court and this Court granted relief to the petitioner stating that there couldnot be different yardsticks while imposing punishment on Mr.R.P.Singh as well as on petitioner for the same charges. Based on the Division Bench Judgment of this Court dated 27.04.2009, the petitioner was reinstated on 15.05.2009 after a period of four years reinstatement of Mr.R.P.Singh. 9. This Court by an order dated 27.04.2009 categorically ruled that the Charge No.3 could not be held to be proved or could be applied against the petitioner. Therefore, the petitioner is exonerated from Charge No.3. As far as Charge No.4 is concerned, that the Charge against Mr.Bhaimaiah (a delinquent officer) was ordered to be dropped. This Court only observed that the Charges 1 & 2 are concerned, similarly placed persons were treated differently and therefore, the compulsory retirement was set aside. Hence it cannot be said that the petitioner is exonerated from the Charges. Division Bench of this Court passed order only on the ground of discrimination in imposing the punishment and there is no question of any exoneration of petitioner. 10. However, it is seen the same authority namely, the 1st respondent adopted different yardstick by granting relief to Mr.R.P.Singh and denying the same to the petitioner, because of that order only, the petitioner approached this Court for getting the same relief given to Mr.R.P.Singh by the 1st respondent. The Division Bench of this Court set aside the compulsory retirement and ordered penalty of reduction of pay by three stages in the time scale of pay for a period of two years without cumulative effect. https://hcservices.ecourts.gov.in/hcservices/ 11. For no fault, the petitioner was given different treatment and he was compulsorily retired from service whereas different and lenient view was taken in respect of the other officer for the same charges. If the same view was taken in respect of the petitioner, he would have worked for the period from the date of reinstatement of the other Officer Mr.R.P.Singh till the reinstatement of the petitioner and he would have earned salary and other benefits during that period. Therefore, for the intervening period that is from the date of reinstatement of Mr.R.P.Singh till the date of reinstatement of the petitioner (between 22.06.2006 and 15.05.2009) in stead of granting 100% back wages, this Court declares that the petitioner is entitled to 50% of the back wages and other monetary benefits for the said period. As far as promotion is concerned, the petitioner is directed to give a representation, giving the details within four (4) weeks from the date of receipt of a copy of this order and the authorities are directed to consider the same and pass orders within a period of eight (8) weeks from the date receipt of petitioner's representation. The amount is directed to be calculated and given to the petitioner within eight (8) weeks from the date of receipt of a copy of this order. 12. With the above, this Writ Petition is allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar smn To 1.The Director General, Central Industrial Security Force, Block No.13, C.G.O. Complex, Lodhi Road, New Delhi - 3. 2.The Inspector General, Central Industrial Security Force, Southern Sector, CH.P.T. Campus, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3.The Deputy Inspector General, Central Industrial Security Force, Neyveli Lignite Corporation, Neyveli. 4.The Group Commandant, Central Industrial Security Force, Group Head Quarters, Rajaji Bhavan, Besant Nagar, Chennai - 600 090. +1cc to Mr.Sudhashana Sunder, Advocate Sr 48411 +1cc to Mr.A.S.Mujibur Rahman, Advocate Sr 48032 NSM(CO) km/28.9. W.P.No.1373 of 2010 https://hcservices.ecourts.gov.in/hcservices/