IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22-10-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.15322 of 2007 & M.P.Nos.2 of 2007, 1 of 2008 Gowrishankar ... Petitioner Vs. 1. The Superintendent of Police, Dharmapuri District, Dharmapuri. 2. The Accountant General (A&E), T.N., Chennai - 18. 3. The Deputy Inspector General of Police, Salem Range, Salem. ... Respondents Prayer: This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the respondents in connection with the impugned order passed by the respondents 1 and 2 in D.O.No.1160/2005, C.No.H2/16540/2005 dated 16.11.2005 and No.AG (A&E)PEN.P04/4/G84-643/RTD/2006-2007/PAO2771/1621, dated 9.2.2007 respectively and quash the same and direct the respondents to sanction retirement benefits to the petitioner taking into consideration the scale of pay fixed by the first respondent on 24.6.2004 in the cadre of the Head Constable and further direct the respondents to draw and disburse the monetary benefits within a reasonable time. For Petitioner : Mr.K.Venkataramani, Senior Counsel for Mr.M.Muthappan For Respondents : Mr.L.S.M.Hasan Fizal Government Advocate O R D E R By consent of both sides, the writ petition is taken up for final disposal. 2. The prayer in the writ petition is to quash the order dated 16.11.2005 passed by the first respondent and the order dated 9.2.2007 passed by the second respondent and direct the respondents https://hcservices.ecourts.gov.in/hcservices/ to sanction retirement benefits to the petitioner taking into consideration the scale of pay fixed by the first respondent on 24.6.2004 in the cadre of Head Constable and disburse the monetary benefits within a reasonable time. 3. The brief facts necessary for disposal of the writ petition are as follows: (a) The petitioner was appointed as Grade-II Police Constable in the District Armed Reserve, Salem District in the year 1964 and after bifurcation of the Salem District, he was transferred to the Dharmapuri District in the year 1967. Petitioner was transferred to the Law and Order Wing in the year 1974 and he was promoted as Grade- I Police Constable in the year 1982 and upgraded as Head Constable on 11.2.2002. Petitioner attained the age of superannuation on 30.5.2004 and he was permitted to retire. According to the petitioner, he has received 20 rewards. (b) In the disciplinary proceeding initiated against the petitioner in P.R.No.184 of 203, final order was passed on 23.4.2004 imposing a punishment of reduction in the time scale of pay by two stages for two years with cumulative effect. The said order of punishment was issued just few days prior to the petitioner's superannuation. The said order of punishment was challenged by the petitioner by filing an appeal before the Commissioner of Police, Salem City, who modified the punishment to that of reduction in time scale of pay by one stage for one year without cumulative effect, by order dated 25.5.2004. The said punishment could not be given effect to and consequently monetary benefit was ordered to be recovered from the DCRG. (c) According to the petitioner, at the time of retirement, he was serving as Head Constable with the basic scale of pay of Rs.4,200/-. After serving the punishment of reduction for three years from Grade-I to Grade-II Police Constable, imposed earlier, he was re-promoted as Grade-I Police Constable on 22.5.2002 and further upgraded as Head Constable after the completion of the period of punishment and the petitioner's pay in the scale of pay of Head Constable was fixed at the minimum scale of Rs.4,200/- since 29.1.2002 and granted increment by order dated 21.6.2004. (d) Petitioner was also recommended pension based on the last drawn salary of Rs.4,200/- and gratuity at 30% based on the time scale of pay of Rs.4,200/- per month. Pension proposals were forwarded to the Accountant General, Chennai, by the Superintendent of Police, Dharmapuri, on the above said scale of pay on 24.6.2004. Taking note of the punishment suffered by the petitioner on earlier occasion, the second respondent sanctioned pension of Rs.1,433/- per month and a sum of Rs.76,284/- towards gratuity and Rs.59,874/- as commuted pension by order dated 2.12.2004. According to the https://hcservices.ecourts.gov.in/hcservices/ petitioner the said sanction of pension, gratuity and commuted pension was made on the basis of the pay applicable to Grade-II Police Constable. (e) The second respondent in the above referred proceeding dated 2.12.2004 stated the reason that punishment imposed on the petitioner having been extended beyond the superannuation date, the restoration of the rank of the petitioner as Grade-I Police Constable and then as Head Constable is incorrect and directed to rectify the mistake and directed for the revision of pay. Pending the alleged rectification of the mistake and the proposal for revision, the amount sanctioned were also withheld. (f) Petitioner submitted representation on 13.6.2005 to the second respondent and stated that the punishments have been already taken into consideration, besides the monetary value of the punishment in all the cases where the punishment is unable to be executed, was ordered to be recovered from the DCRG. However, the first respondent by order dated 16.11.2005 re-fixed the salary of the petitioner on the date of superannuation at Rs.3,880/- per month instead of Rs.4,200/- per month and also cancelled the upgradation of the petitioner as Head Constable. The said order of re-fixation of the pay and reduction in rank after retirement was made without any show cause notice to the petitioner. (g) Petitioner preferred an appeal before the Superintendent of Police and also before the third respondent on 27.6.2006 for which there is no reply and finally second respondent by proceeding dated 9.2.2007 granted pension of Rs.1,823/- per month, a sum of Rs.93,217/- as gratuity and Rs.76,192/- as commuted value of pension as if the petitioner has retired from service as Grade-I Police Constable as per the order dated 16.11.2005 and ordered recovery of the excess salary and allowances paid to the petitioner. (h) The said orders dated 16.11.2005 and 9.2.2007 are challenged in this writ petition on the ground that the petitioner having been allowed to retire as Head Constable on 31.5.2004, the reduction in rank ordered by the first respondent by order dated 16.11.2005 without any notice to the petitioner, that too after retirement, is unsustainable. It is also contended that the petitioner was upgraded as Head Constable on 11.5.2002 on completion of the earlier punishment on par with his juniors and therefore no reduction in rank can be ordered against the petitioner since the petitioner suffered earlier punishment. The reduction of time scale of pay by one stage for one year without cumulative effect by order dated 25.5.2004 can be implemented by calculating the monetary benefit payable for the said period and the punishment having been without cumulative effect, he is entitled to get the pension, gratuity and commutation of pension based on his last drawn salary of Rs.4,200/- per month. https://hcservices.ecourts.gov.in/hcservices/ 4. The respondents have filed counter affidavit contending as follows: (i) By order passed on 23.2.2004 in P.R.No.184/2003, the petitioner was imposed with the punishment of reduction in time scale of pay by two stages for two years with cumulative effect, which was modified by the appellate authority into that of reduction in pay by one stage for one year without cumulative effect by proceeding dated 25.5.2004. The earlier punishment imposed in P.R.No.19/93 dated 29.5.1998 was stoppage of two increments for two years with cumulative effect. In PR.No.67/93, petitioner was imposed with punishment of reduction in rank from Grade-I to Grade-II Police Constable for a period of five years on 29.5.1998, which was also modified to that of three years in the appeal. All the above referred two punishments run concurrently and therefore totally three increments were stopped with cumulative effect and the petitioner's rank was also reduced from Grade-I to Grade-II (Selection Grade) with effect from 29.5.1998. (ii) As per the orders issued in P.R.No.19/93 and 67/93, petitioner's increments were stopped for three years with effect from 29.5.1998 with cumulative effect. Again the petitioner was imposed with the punishment of reduction in pay by two stages for two years with cumulative effect in PR.No.8/2000 by order dated 11.5.2000. Petitioner completed the punishment period only on 10.5.2003. However, he was re-promoted as Grade-I Police Constable on 1.10.2002 and his pay was also fixed in the cadre of Grade-I Police Constable as Rs.3,965/- from 1.10.2002. (iii) Due to the withholding of two increments pursuant to the orders in P.R.No.184/2003, the pay of the petitioner was reduced to Rs.3,880/- and he was allowed to retire on 31.5.2004. According to the counter affidavit the petitioner having underwent the punishment of pay reduction, his upgradation as Head Constable is bound to be withdrawn and on the instructions of the Accountant General, the pay of the petitioner was re-fixed and recovery was ordered. Stating all the above reasons the first respondent justified the impugned orders. 5. The learned Senior Counsel appearing for the petitioner submitted that the petitioner having been re-promoted as Grade-I Police Constable, after completion of the earlier punishment on 22.5.2002, and again upgraded as Head Constable with effect from 11.5.2002 on par with his juniors and his pay having been fixed at the minimum time scale of pay of Rs.4,200/-, the first respondent is not entitled to revert the petitioner from the post of Head Constable to Grade-I Police Constable, that too after retirement, and also not justified in reducing the pay scale of the petitioner from 4,200/- to Rs.3,880/-. The learned Senior Counsel further submitted that the punishment of withholding of increment for one year without https://hcservices.ecourts.gov.in/hcservices/ cumulative effect will not enable the first respondent to revert the petitioner since the petitioner has attained the age of superannuation on 31.5.2004 and the reduction of pay can be compensated by recovering the amount equivalent to one year increment and the said punishment having been imposed without cumulative effect, there cannot be any reduction in pension. 6. The learned Government Advocate appearing for the respondents submitted that the petitioner was erroneously given re- promotion as Grade-I Police Constable and also given further promotion as Head Constable and the same having been pointed out by the second respondent, the order of reversion was passed by reducing the petitioner to the cadre of Grade-I Police Constable with consequential reduction of pay and difference in pay already paid was ordered to be recovered and there is no illegality in the said order. 7. I have considered the rival submissions of the learned Senior Counsel for the petitioner as well as the learned Government Advocate. 8. The petitioner was given re-promotion as Grade-I Police Constable by order dated 22.5.2002, which reads as follows: "C.No.A2/43028/2001 District Police Office DO.39/2002 Dharmapuri Dt.23.1.2002 REPROMOTION IN RANK ORDERED Gr.II PC 444 Gowrisankar of Thoppur PS was reduced in rank from Gr.I to Gr.II PC for a period of 5 years in this office DO.1226/98 in C.No.M2/PR27/97 dated 29.5.98. This punishment was modified into that of Reduction into Rank for the period of three years as per the proceeding of the Deputy Inspector General of Police, Vellore Range, Vellore in C.No.AP.21/99 dated 16.3.99. Since the rank reduction period is over on 31.1.2002, he is repromoted from the rank of Gr.II to Gr.I PC with effect from 25.1.2002 FN. 2. S1 Assistant will fix the pay of the above PC in the rank of Grade I PC from the date of orders. Sd/- D. Udayakumar, Superintendent of Police Dharmapuri." Petitioner was further upgraded as Head Constable with effect from 11.5.2002 i.e., from the date of completion of earlier punishment. Admittedly, the petitioner retired as Head Constable on 31.5.2004. The subsequent punishment, even though originally was withholding of reduction in time scale of pay by two stages for two years with https://hcservices.ecourts.gov.in/hcservices/ cumulative effect, was modified in the appeal by reduction in time scale of pay by one stage for one year without cumulative effect. Thus, it is clear that the petitioner's scale of pay can be reduced by one stage for one year alone without affecting his pensionary benefits. The pay was fixed with effect from 11.5.2002 and the order dated 24.6.2004 reads as follows: "D.O.No.645/2004 District Police Office, C.No.F3/18693/2004 Dharmapuri. HC Pay Fixation In accordance with the orders issued in this office D.O.No.100/2003 in C.No.A3/30462/2002, dated 29.1.2003 Gr-I PC 444 Gowrishankar of Pappiredipatty Police Station, Dharmapuri District was upgraded as HC with effect from 11.5.2002 and his pay is fixed as follows: Pay as on 10.5.2002 as Gr-I PC Rs. 3,540.00 in the time scale of pay 3200-85-4900 He was promoted as HC with effect from 11.5.2002 and pay fixed as upgraded HC with effect from 11.5.2002, under rule FR 22(B) in the time scale of pay 4000-100-6000 Pay as on 10.5.2002 Rs. 3,540.00 Add: Notional increment Rs. 85.00 ----------------------- Rs. 3,625.00 ----------------------- Minimum benefit 5%, 3540x5=177=3540+177 = 3,717 Pay fixed as HC in the time scale of - 4,000 Rs.4000-100-6000, with effect from Monitary benefit 11.5.2002 from 29.1.03 Sanctioned annual Rs:4,000-100 = 4,100 increment 1.4.2003 Sanctioned annual Rs:4,100-100 = 4,200 increment 1.4.2004 2) The arrears of pay and allowances was drawn and paid to him separately. Sd/- S.Rajendran Superintendent of Police, Dharmapuri." https://hcservices.ecourts.gov.in/hcservices/ 9. As the petitioner has already retired on 31.5.2004, no reversion could be ordered and only pay reduction can be made notionally and the respondents are entitled to recover the difference in pay for one year, if already paid. Hence the pay fixation of Rs.4,200/- per month alone is bound to be taken into consideration for the purpose of sanction of pension, gratuity and commutation of pension. The respondents can calculate the one stage pay difference for one year and the same can be recovered from the petitioner's terminal benefits. The reduction in rank ordered by the first respondent, without notice and after retirement of the petitioner, is unsustainable. Similarly, re-fixation of the petitioner's pay after retirement without notice, is also unsustainable. Petitioner having been allowed to retire from 31.5.2004 as Head Constable and the ultimate punishment is withholding of increment for one year without cumulative effect, the respondents have no jurisdiction to reduce the rank of the petitioner and one incremental arrears alone can be recovered. 10. Admittedly the petitioner was functioning as Head Constable from 11.5.2002 and drawn his pay as Head Constable. Rule 31 of the Tamil Nadu Pension Rules, 1978, specifically states that ten months average pay last drawn shall be taken into account for fixing the pension of a Government Servant, who retires after 1.1.1974. Hence the action of the respondents in reducing the pension is also in violation of the said statutory rule. 11. On the basis of the above findings, the impugned orders dated 16.11.2005 and 9.2.2007 are set aside with a direction to the respondents to sanction the retirement benefits to the petitioner taking into consideration the scale of pay fixed by the first respondent on 24.6.2004 and disburse the monetary benefits, after recovering the amount equivalent to reduction of pay for one year. Respondents are directed to settle the benefits payable to the petitioner as stated supra within a period of three months from the date of receipt of copy of this order. The writ petition is allowed with the above directions. No costs. Connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ vr To 1. The Superintendent of Police, Dharmapuri District, Dharmapuri. 2. The Accountant General (A&E), T.N., Chennai - 18. 3. The Deputy Inspector General of Police, Salem Range, Salem. 1 cc To Mr.T.Ayngraprabhu, Advocate, SR.58991 1 cc To The Government Pleader, SR.58975 W.P.No.15322 of 2007 KM(CO) SRA(30/10/2008) https://hcservices.ecourts.gov.in/hcservices/