IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.35084 OF 2006 (O.A.NO.4527 OF 1998) V.Muthukrishnan .. Petitioner Vs. 1.Director, Animal Husbandry Department, Chennai. 2.Joint Director, Animal Husbandry Department, Tuticorin. 3.Deputy Director, Animal Husbandry Department, Cattle Breeding and Fodder Dept., Tuticorin. 4.Officer-in-charge, Regional Artificial Insemination Centre, Tuticorin. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to set aside the order passed by the Director in Roc No.174487/L2/92, dated 16.09.1997 and to direct the respondents to treat the period of absence due to suspension for the period from 13.1.87 to 14.4.90 as period spent on duty. For Petitioner : Mr.R.Rengaramanujam For Respondents : Mr.R.Neelakantan, GA - - - - ORDER Heard both sides. 2.This writ petition arose out of O.A.No.4527 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.35084 of 2006. 3.The petitioner sought for the issuance of a writ of certiorarified mandamus to set aside the order passed by the Director in Roc No.174487/L2/92, dated 16.09.1997 and to direct the respondents to treat the period of absence due to suspension for the period from 13.1.87 to 14.4.90 as period spent on duty. https://hcservices.ecourts.gov.in/hcservices/ 4.The petitioner seeks to challenge the order, dated 16.09.97 passed by the first respondent and for a consequential direction to treat the period of absence due to suspension for the period from 13.1.87 to 14.4.90 as a period spent on duty. The petitioner was proceeded with a criminal cation under Section 4(1)(j) of the Tamil Nadu Prohibition Act read with Section 75 of the Madras City Police Act in crime No.49/87 in relation to the incident that took place on 13.1.87. Pending the criminal action, he was also suspended. Since the period of suspension continued for more than 3 years, the first respondent by an order dated 29.3.1990 revoked the suspension. Even when the criminal case was pending, he was given the charge memo under Rule 17(a) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules. An enquiry was conducted into the said charges. By an order, dated 18.7.90, the petitioner was issued with a punishment of censure. 5.In the meanwhile, the petitioner was acquitted by the JM-1, Toothukudi vide judgment, dated 6.4.90. The petitioner belatedly filed an appeal against the order of punishment. The appellate authority, the second respondent herein, dismissed the appeal as barred by limitation. It was stated that the pendency of the criminal case was not barred from proceeding with the departmental action. The 4th respondent issued a show cause notice, dated 5.2.91 asking to show cause as to why his suspension period should not be treated as a leave to which he was eligible. Since the petitioner did not send any reply, the third respondent passed an order dated 28.11.91 treating the suspension period as follows: 13.1.87 to 12.2.87 – 31 days as Earned Leave 13.2.87 to 13.4.90 – Leave without Pay and Allowances. 6.The only contention raised by the petitioner in the OA was that he should have the benefit of the order of the Government in G.O.Ms.No.261, P&AR Department, dated 4.8.92. The said order emanated from the clarification sought by the subordinate officer in respect of ruling No.9 under Fundamental Rule 54. Paragraphs 2 and 3.1 of the said order reads as follows: "2.At present, there is no provision in the Fundamental rules to regulate the period of suspension of a Government servant who is placed under suspension simultaneously on both the counts of departmental action as well as criminal proceedings. 3.The Government, after careful examination of the points raised in para 2 above, issue the following clarification:- POINTS RAISED CLARIFICATION (i)Where a Government Servant if he/she is reinstated is acquitted by court for in view of the specific a criminal offence but order or direction of the subsequently imposed a court, the period of sus- https://hcservices.ecourts.gov.in/hcservices/ penalty in the departmental pension has to be treated action taken under Rule 17(b) as duty, even though of the Tamilnadu Civil subsequently a penalty is Services (CCA) Rules for imposed on him/her for the same charges notwithstanding same charges in the depart- the fact that he was mental action and in acquitted earlier by the other cases the period of court. suspension may be regulated under Fundamental Rule 54. 7.The only ground found in the impugned order passed by the first respondent was that a clarification was given only for situations that took place after 20.9.92 and not for action taken in regulating the period of suspension before the date. This stand of the respondents is not justified. The Fundamental Rules deals with regulating the period of suspension and from time to time, the Government issues orders clarifying the ambiguities in interpreting a particular FR. Therefore, such clarification must take back to the date of the rule and not the date of the clarification. It is only when a rule is made, it can be considered either prospective or retrospective, but when a subordinate officer seeks clarifications on interpreting the rule laid down by the State, any clarification given by the State must be taken into account as if the clarification existed even on the date of the rule. In fact the G.O. itself says that there is no provision in the FR to regulate the period of suspension of a Government servant who was placed under suspension simultaneously on both counts of departmental action as well as criminal proceedings. 8.In the light of the above, the petitioner is entitled to have the benefit of the clarification issued by the State vide G.O.Ms.No.261, P&AR Dept., dated 4.8.92. Hence the writ petition stands allowed and the respondents are directed to treat the period of the petitioner's suspension in terms of the Government's clarification and pay his salary for the said period within a period of three months from the date of receipt of this order. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Director, Animal Husbandry Department, Chennai. 2.The Joint Director, Animal Husbandry Department, Tuticorin. https://hcservices.ecourts.gov.in/hcservices/ 3.The Deputy Director, Animal Husbandry Department, Cattle Breeding and Fodder Dept., Tuticorin. 4.The Officer-in-charge, Regional Artificial Insemination Centre, Tuticorin. 1 cc To Mr.R.Rengaramanujam, Advocate, SR.49600 W.P.NO.35084 OF 2006 RSI(CO) SRA(12/10/2009) https://hcservices.ecourts.gov.in/hcservices/