IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.02.2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN Writ Appeal No.1436 of 2006 P.Muthuswamy .. Appellant/Petitioner vs. 1. The Commissioner Corporation of Madras Chennai -3. 2. The Government of Tamilnadu rep. by its Secretary to Govt., Municipal Administration and Water Supply Department Fort St. George, Chennai-9. .. Respondents/Respondents Writ Appeal against the order dated 23.09.2004 passed in Writ Petition No.40801 of 2002 on the file of this Court. W.P.40801/02: This W.P. Filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus to call for the records relating to the proceedings of the 1st respondent in Proc.ACC.No.A3/A10/340/92 dated 19.8.98 passed pursuant to the order of this court in W.A.898/97 dated 7.1.98 and quash the following portions of the order dated 19.8.98:- 2) The pay of the individual is reduced to the minimum of the revised time scale of pay of Rs.6,500-200-10500 i.e. Rs.6,500/- w.e.f.16.12.96 3) The period of his absence and unauthorised absence from 20.1.92 and from 1.2.92 to 15.2.96 respectively is treated as follows: ii) 1.2.92 to 15.2.96 Extraordinary Leave without MC, and iii) The Period from 16.2.96 to 29.2.96 (i.e. From the date of issue of orders of removal from service to the date of attaining the age of superannuation is treated as earned leave. For Appellant : Mr.S.M.Subramaniam https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr.V.Bharathidasan for R1 Mr.A.Arumugam Spl. Govt. Pleader for R2 J U D G M E N T (Judgment of the Court was delivered by PRABHA SRIDEVAN,J.) The writ petitioner was appointed as Lower Division Clerk on 03.09.1959 in Chennai Corporation and subsequently promoted as Upper Division Clerk. Thereafter, he was promoted as Assistant Cashier and Head Cashier with effect from 17.08.1973. He applied for extra- ordinary leave on medical grounds on 20.01.1992 for one month. According to the writ petitioner, this was not accepted by the Corporation and leave was not sanctioned. He applied for voluntary retirement by giving three months' notice on 01.09.1992 to retire with effect from 01.12.1992. He also applied for earned leave for three months from 01.09.1992 to 30.11.1992. His application for voluntary retirement was also refused. Two Enquiry Officers were appointed to enquire into the charge regarding issue of bogus chalans. The proceedings concluded with an order for recovery of double the sum for which bogus chalans were issued. Against the refusal of leave as well as voluntary retirement, the writ petitioner filed an appeal. It was kept pending for six months. The writ petitioner prayed for regularisation of the leave period. In the mean time, a charge memo was issued for alleged unauthorised absence and the writ petitioner filed his representation. An Enquiry Officer was appointed and report was submitted. A show cause notice was issued based on the provisional conclusion for dismissing the petitioner. The petitioner filed his explanation. No orders were passed for one year and on 16.02.1996, he was removed from service and therefore, he filed Writ Petition No.2264 of 1996. The writ petition was dismissed, against that, Writ Appeal No.898 of 1997 was filed. The First Bench of this Court passed the following order: "This order is passed with the consent of both the parties. 2. Learned counsel for the respondents states that they are ready and willing to consider the case of the appellant and reduce the quantum of punishment. In view of the stand taken by the respondents, the impugned order is set aside. The writ appeal is allowed and the matter is remitted to the respondents for fresh consideration with respect to the quantum of punishment. The appropriate authority will pass the order with respect to the punishment." 2. Thereafter, a review application was filed and the words "This order is passed with the consent of both the parties" were deleted. After that, on 26.09.2002, treating his period of absence https://hcservices.ecourts.gov.in/hcservices/ as unauthorised and reducing his pay to the minimum of the revised time scale of pay, an order in G.O.(D) No.392, Municipal Administration and Water Supply (Corporation-3) Department, was passed by the first respondent. Against this, Writ Petition No.40801 of 2002 was filed. By a short order, this writ petition was disposed of, which reads as follows: "2. The pay of the individual is reduced to the minimum of the revised time scale of pay of Rs.6,500-200- 10500 i.e. Rs.6,500/- w.e.f. 16.2.1996. 3. The period of his absence and unauthorised absence from 20.1.1992 and from 1.2.1992 to 15.2.1996 respectively is treated as follows: ii) 1.2.92 to 15.2.96 – Extraordinary Leave without MC and iii) the period from 16.2.1996 to 29.2.1996 (i.e.) from the date of issue of orders of removal from service to the date of attaining the age of superannuation is treated as Earned Leave." 2. The petitioner was employed in the Corporation of Madras. He was unauthorisedly absent for a period of nine months. Consequently, charge memo was issued to the petitioner and an enquiry was conducted. The Enquiry Officer gave his findings that the charge was proved. Hence, the petitioner was removed from service. 3. In W.A.No.898 of 1997 preferred by the petitioner, the punishment of removal from service was set aside and the respondents were directed to take a fresh consideration regarding the quantum of punishment, pursuant to this direction, the impugned order has been passed. 4. Learned counsel for the petitioner submits that his time scale of pay was reduced to Rs.6,500-200-10,500 w.e.f. 16.2.1996 and the petitioner was retired from service on 29.2.1996 and before passing the impugned order, the petitioner was getting around Rs.8,550/- as basic salary. 5.There is no doubt that the authorities are empowered to dismiss the persons from service or retire the persons compulsorily or any other punishment in accordance with the service rules, but they cannot reduce the salary to the minimum in the time scale of pay as one of punishment, which is not specified in any of the https://hcservices.ecourts.gov.in/hcservices/ service rules. Hence, the impugned order is set aside in so far as it relates to the reduction of time scale of pay, which is not legally sustainable." 3. According to the writ petitioner, his terminal benefits were not granted. Therefore, a contempt petition in Cont. Petn. No.977 of 2007 was filed. The contempt petition was dismissed as follows: "3. Prima facie, I am of the view that the contempt proceedings can be invoked only when a specific direction of this Court has been flouted or disobeyed with malicious intention for extraneous reason. Here is a case in which the relief granted to the petitioner is setting aside that portion of the punishment as stated above. There is no reference whatsoever about the consequential benefits. In such circumstances non-granting of the consequential benefits, which has been projected for maintaining the contempt petition, cannot be allowed to sustain." 4. Thereafter, this writ appeal was filed. Learned counsel for the appellant submitted that the authorities unjustifiably proceeded the disposal of the appeal and his leave application and so, the petitioner had been put to untold misery. The order of dismissal and the order reducing his pay to the lower time scale of pay have been set aside by the Court. In these circumstances, the authorities must grant him the entire arrears of back wages and the pensionary benefits accordingly. Learned counsel submitted that the authorities have paid the retirement benefits as per the order passed in the writ petition, but for the period of absence, which should have been ultimately regularised, they have not given the back wages nor have they calculated and paid the pension payable. Learned counsel produced the proceedings dated 10.06.2008, by which the reduction of time scale of pay has been set aside and the petitioner has been informed that revised pension would be disbursed after his pay is revised. 5. On behalf of the Corporation, it is contended that a person, who has been absent unauthorisedly for more than four years, cannot demand as of right that the entire back wages should be paid. It was also submitted that the finding regarding the misconduct viz., unauthorised absence, has not been set aside till date and therefore, there is no question of condoning the entire period of absence and rewarding the petitioner for being absent. 6. We have gone through the papers and we have to accept the submission made on behalf of the Corporation-first respondent herein, that at no stage, this Court had set aside the findings regarding unauthorised absence. Therefore, the petitioner/appellant is not entitled to seek the entire back wages for the period, during which he was absent. But, however, we find some merit in the submissions https://hcservices.ecourts.gov.in/hcservices/ made on behalf of the appellant that the matter was dragged for a long period, which was not entirely the fault of the petitioner. In these circumstances, we think, it would be appropriate to balance the equities. 7. In 2008 (2) SCC (L&S) 577 (St. Michael's Teacher's Training Institute v. V.N.Karpaga Mary and Others), the Supreme Court confined the quantum of back wages to 75%. The relevant paragraph reads as follows: "15. The question that the appellant was amenable to writ jurisdiction is not in dispute. If it was amenable to writ jurisdiction, the High Court was not only entitled to set aside an order of termination of service on an interpretation that neither the GOMs had any retrospective application nor, in any event, had any application to the case of appointment of the respondent but also to grant back wages. On the said premise, the High Court had the jurisdiction to set aside the order of termination. Once the order of termination was set aside, the logical corollary therefor should ordinarily ensue, subject of course to denial of the benefit either in totality or in part. It was in the aforementioned situation, the question of grant of back wages would arise." 8. In 2003 (2) SCC 212 (A.P.SRTC and another vs. S.Narsagoud), which was also a case, where the employee had been absent for a long period, the Supreme Court directed that there should be no payment for the period of absence. The relevant paragraphs read as follows: "5. The only submission made by the learned counsel for the appellant is that when an employee remains unauthorisedly absent from duty and though he has been directed to be reinstated with continuity of service by a judicial order, unless and until there is a direction for release of consequential benefits and specifically for the benefit of increments being given which the employee might have earned during the period of unauthorised absence from duty merely because the employee has been allowed the benefit of continuity of service the benefit of such increments cannot be released to him. The benefit of continuity of service only means that for the purpose of seniority and pensionary benefits the period of absence shall be taken into account as spent on duty, submitted the learned counsel for the appellant. In support of his submission he has also invited our attention to the provisions of the Andhra Pradesh State Road Transport Corporation Employees (Pay and Allowances) Regulations, 1964 and a circular issued thereunder by A.P. SRTC. https://hcservices.ecourts.gov.in/hcservices/ 6. ... 7. ... 8. However, it appears that consequent upon the judgment of the learned Single Judge dated 16-8-1999 and other similar judgments disposing of the writ petitions, the Corporation was compelled to issue another circular whereby it directed that in view of the said judgments of the High Court it was necessary that in a case where an employee was directed to be reinstated with continuity of service the pay of the employee shall be refixed by giving notional increments for the period out of service though the monetary benefit of revised fixation shall be given only from the date of reinstatement. The effect of the judgment of the learned Single Judge, upheld by the Division Bench and the circular issued consequent upon the judgment of the High Court is that the employee being reinstated, in spite of having been held guilty of unauthorised absence from duty, continues to earn increments though there is no payment of wages for the period of absence. This results in an incongruous situation, submitted the learned counsel for the appellant. 9. We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorised absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorised absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service. 10. The Regulations referred to hereinabove clearly spell out that the period spent on the extraordinary leave or leave without pay or a period of overstayal after the expiry of leave or joining time cannot count towards increments unless the order of the competent authority sanctioning the extraordinary leave or leave without pay or the order commuting the period of https://hcservices.ecourts.gov.in/hcservices/ overstayal into extraordinary leave or leave without pay is accompanied by a specific order to count the period for increments. A period of unauthorised absence from duty treated as a misconduct and held liable to be punished by way of penalty cannot be placed on a footing better than the period of extraordinary leave or leave without pay or a period of overstayal. Ordinarily, the increments are earned on account of the period actually spent on duty or during the period spent on leave, the entitlement to which has been earned on account of the period actually spent on duty. The direction of the High Court entitling the respondent to earn increments during the period of unauthorised absence from duty though held liable to be punished in departmental inquiry proceedings would amount to putting a premium on the misconduct of the employee." 9. Though no such Regulation has been brought to our notice, we think this would be the proper order for a person, who has been absent without justification for a period of four years. Therefore, the writ appeal is disposed of, directing the first respondent to grant the appellant the continuity of service granting notional increments and calculate and pay his pension accordingly. It is made clear that for the period of absence, he will not be entitled to any arrears of back wages. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar ATR To 1. The Commissioner Corporation of Madras, Chennai -3. 2. The Secretary to Govt., Government of Tamilnadu Municipal Administration and Water Supply Department Fort.St. George, Chennai-9. + 1 CC to Mr.S.M.Subramaniam,Advocate,SR.5934 + 1 CC to Mr.V.Bharathidasan,Advocate,SR.5947 W.A.No.1436 of 2006 CK(CO) EM/25.2. https://hcservices.ecourts.gov.in/hcservices/