1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.8918 of 2011 Sorimuthu ... Petitioner Vs. 1.The Superintendent of Police, Tirunelveli District, Tirunelveli. 2.The Accountant General (A & E), Tamil Nadu, Chennai. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the proceedings of the first respondent in Na.Ka.No.F1/Pen67/2010, dated 08.06.2011 and to quash the same and to pay the monthly pension with arrears to the petitioner taking into account Rs.11,790/- as his basic pay. For petitioner : Mr.V.Kannan For respondents: Mr.T.S.Mohamed Mohideen, Additional Government Pleader ORDER Challenge in this writ petition is to an order, dated 08.06.2011, passed by the Superintendent of Police, Tirunelveli District, the first respondent herein, rejecting the request of the petitioner herein to restore his basic pay at Rs.11,790/- and grant monthly pension with arrears, taking into account the above said fixation of pay, consequent to the implementation of the Pay Commission's report. 2.It is the case of the petitioner that the petitioner joined the Police Department, as Constable, on 23.05.1978. While he was working as Head Constable, disciplinary proceedings in P.R.No.118 of 2007, were initiated against him, in which, he was inflicted with a punishment of reduction by two stages in the time scale of pay for two years without cumulative effect. At that time, the petitioner had reached the pay of Rs.4700/- and by way of implementation of penalty, the pay was reduced to Rs.4500/- with effect from 14.04.2008 for two years. The petitioner further submitted that following the abovesaid departmental action, another departmental proceedings in P.R.No.165 of 2008 under Rule 3(b) of the Tamil Nadu Police Subordinate Service Rules, 1955, was initiated and that the petitioner was removed from service, on 02.07.2010, by the Superintendent of Police, Tirunelveli District. On appeal to the Deputy Inspector General of Police, Tirunelveli Range, the punishment was modified into that of compulsory retirement from service with effect from 04.02.2009. Pursuant to the modification of penalty, the Superintendent of Police, Tirunelveli District, passed an order, dated 14.10.2010, directing recovery of the monetary value equivalent to the unavailed portion of the punishment period from 04.02.2009 to 13.04.2010, imposed in P.R.No.118 of 2007 from DCRG https://hcservices.ecourts.gov.in/hcservices/ 2 benefits and that the monetary value was worked out at Rs.12,576/-. It is the further case of the petitioner that the said amount had been recovered. The petitioner further submitted that when the appeal filed before the Deputy Inspector General of Police, Tirunelveli Range, was pending against the order of removal, the Superintendent of Police, Tirunelveli District, the first respondent herein, passed an order on 10.11.2009 reducing the pay of the petitioner from Rs.11,790/- to Rs.11,100/- with effect from 14.04.2008 for two years without cumulative effect. Being aggrieved by the same, the petitioner made a representation on 19.04.2011 to the Superintendent of Police, Tirunelveli District, the first respondent herein, requesting to reconsider the pension proposal and to revise the pension taking into account, i.e., Rs.11,790/- as pay. The said request has been rejected and hence the present writ petition. 3.On the above said pleadings and inviting the attention of this Court to the order, dated 14.10.2010, passed by the Superintendent of Police, Tirunelveli District, recovering the monetary value equivalent to the unavailed portion of the punishment period worked out at Rs.12,576/- from the petitioner's DCRG benefits, Mr.V.Kannan, learned counsel for the petitioner submitted that once the punishment has been given effect, the petitioner ought to have been restored to his original pay and consequently, entitled to get the pension and other monetary benefits, by restoring the pay, to which he was eligible. He further submitted that though the Superintendent of Police, Tirunelveli District, has referred to the order, dated 14.10.2010, by which the monetary value of the penalty had already been deducted from DCRG benefits, he has not adverted to the same properly. For the above said reasons, he submitted that the impugned order is arbitrary and hence, liable to be set aside. 4.When the matter came up for hearing on 09.08.2011, Mr.T.S.Mohamed Mohideen, learned Additional Government Pleader was directed to take notice and get instructions. On this day, on instructions, he submitted that the representative of the first respondent has brought some other file and not pertaining to the petitioner. However, he made submissions to sustain the impugned order. 5.Heard the learned counsel for the parties and perused the materials available on record. 6.The fact that the petitioner has been imposed with penalty of reduction by two stages in time scale of pay for two years without cumulative effect, in P.R.No.118 of 2007 by the Superintendent of Police, Tirunelveli District, under Rule 3(b) of the Tamil Nadu Police Subordinate Service Rules and that his pay has been reduced from Rs.4700/- to Rs.4500/- with effect from 14.04.2008 for two years without cumulative effect and subsequently, the petitioner has been imposed with the penalty of removal from service on 04.02.2009 in P.R.No.165 of 2008 and that on appeal, the said punishment has been modified into that of compulsory retirement from service, vide proceedings, dated 02.07.2010, are all admitted. As the penalty of the reduction in time scale could not be implemented, the Superintendent of Police Tirunelveli District, vide order dated 14.10.2010, has directed recovery of monetary value. The order, dated 14.10.2010, of the Superintendent of Police, Tirunelveli District, reads as follows; https://hcservices.ecourts.gov.in/hcservices/ 3 "D.O.No.1154/2010 District Police Office, ---------------------------- Tirunelveli. C.No.P4/R.P.32/2010 Dated : 14.10.2010 RECOVERY OF MONETARY VALUE Ex.HC 2315 Sorimuthu, who was compulsorily retired from service with effect from 04.02.2009 was inflicted with the punishment of reduction in pay by two stages for two years without cumulative effect by the Superintendent of Police, Tirunelveli in PR.118/2007 U/s.3(b) dated 04.04.2008. Hence his pay of Rs.4700/- was reduced to Rs.4500/- with effect from 14.04.2008 for two years without cumulative effect. Meanwhile he was removed from service by the Superintendent of Police, Tirunelveli on 04.02.2009 in PR.165/2008 u/s.3(b). On his appeal petition, the Deputy Inspector General of Police, Tirunelveli Range has modified the punishment into compulsory retirement from service with effect from 04.02.2009, vide Range Office proceedings in C.No.C4/7096/2010, dated 02.07.2010 even before the completion of the punishment period in PR.118/2007 which has to be completed on 13.04.2010. Hence the monetary value of the unavailed portion of the punishment period from 04.02.2009 to 13.04.2010 awarded in PR.118/2007 have to be recovered from his DCRG. Accordingly the monetary value equivalent to the unavailed portion of the punishment period is worked out Rs.12,576/- (Rupees twelve thousand five hundred and seventy six only) will be recovered from his DCRG. Sd/- Asra Garg, Superintendent of Police, Tirunelveli District." 7.Perusal of the pay refixation order, dated 10.11.2009, of the Superintendent of Police, Tirunelveli District shows that the pay of the petitioner, Head Constable was fixed with reference to G.O.Ms.No.234 Finance (Pay Cell) Department, dated 01.06.2009 as detailed hereunder: "Refixation of Pay - Orders- Issued The pay of Ex.H.C.2315, Tr.Sorimuthu of Tirunelveli District is fixed with reference to G.O.M.S.No.234 Fin (Pay Cell) Department, dated 01.06.09, as detailed below. i) Pay as on 01.01.2006 PB-I, Rs.5200 = Rs.8370+GP2400=10770 20200 + GR. Rs.2400. ------------------------------------------ w.e.f.01.01.06 m.e.f.01.01.07 ii) Increment on 01.01.2006 = Rs.10770+3%330 = 11100 iii) Increment on 01.01.2007 = Rs.11100+3%340 = 11440 iv) Increment on 01.01.2008 = Rs.11440+3%350 = 11790 2)His pay is reduced from Rs.11,790/- to 11,100/- with effect from 14.04.2008 for two years without cumulative effect by Superintendent of Police / Tirunelveli in PR.118/07 U/s.3(b). 3)He was awarded another punishment of removal from service with effect from 04.02.09 in PR.No.165/08. 4)Arrears of pay and allowances if any will be drawn and paid to him separately." https://hcservices.ecourts.gov.in/hcservices/ 4 8.The above said order makes it clear that the pay of the petitioner had been reduced from Rs.11,790/- to 11,100/- with effect from 14.04.2008 for two years without cumulative effect by the Superintendent of Police / Tirunelveli. From the foregoing proceedings, it is evident that the punishment imposed on 04.04.2008 has been given effect upto 04.02.2009. Thereafter, due to the removal of the petitioner from service, the same could not be effected. However, when the said punishment was modified into that of compulsory retirement and when the monetary value to the unavailed portion of the punishment period i.e., from 04.02.2009 to 13.04.2010 awarded in P.R.No.118/07 to the tune of Rs.12,576/- has been recovered from DCRG, the petitioner ought to have been restored to his original pay of Rs.11,790/- from the date of completion of the period of punishment, that is, two years reduction in time scale without cumulative effect and consequently, the respondents ought to have computed the monthly pension and paid the arrears. 9.In the light of the orders of recovery, the impugned order, dated 08.06.2011, is liable to be set aside and accordingly set aside. The respondents are directed to compute monthly pension and arrears, taking into account the pay of the petitioner as Rs.11,790/-, within a period three months, from the date of receipt of a copy of this order. 10.The writ petition is disposed of accordingly. No costs. SD ASST REGISTRAR ( Writs ) /TRUE COPY/ SUB ASST REGISTRAR gcg To 1.The Superintendent of Police, Tirunelveli District, Tirunelveli. 2.The Accountant General (A & E), Tamil Nadu, Chennai. 1CC TO THE SPL. GOVT PLEADER SR: 27279: DM::2011:AUGUST:22:: W.P.(MD).No.8918 of 2011 10.08.2011 4P:4C:: https://hcservices.ecourts.gov.in/hcservices/