IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 36371 and 49460 of 2006 P.S. Ramu .. Petitioner in both the Writ Petition Versus The Commissioner of Police .. Respondent in WP No. Egmore, Chennai – 600 008 36371 1. The Director General of Police Chennai – 600 004 2. The Commissioner of Police .. Respondents in WP No. Egmore, Chennai – 600 008 49460 WP No. 36371 of 2006: O.A. No. 4739 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the records relating to the order of Commissioner of Police bearing No. 4394/97 dated 18.12.1997 (A-8) quash the same and consequently direct the respondent to issue an order regulating theperiod of suspension from 21.07.1988 to 25.03.1989 and the period out of employment from 26.03.1989 to 13.02.1993 as duty for all purpose with attendant, monetary and service benefits. WP No. 49460 of 2006: O.A. No. 4739 of 1998 filed before the Tamil Nadu Administrative Tribunal stood transferred to this Court, which was filed praying to call for the records relating to (i) proceedings of the second respondent bearing Rc.No.210950/PR-II(1)/93 dated 30.06.1994 and (ii) proceedings of the first respondent bearing Rc.No.35803/AP-I(1)/99 dated 19.03.1999 and quash the above mentioned two orders. For Petitioner : Mr. K.S. Govinda Prasad for Mr. K.V. Srinivasa Raghavan in both the writ petitions For Respondent : Mrs. Lita Srinivasan Government Advocate in both the writ petitions COMMON ORDER WP No. 49460 of 2006 The petitioner was appointed as Police Constable on 13.02.1975. On 13.07.1988, by proceedings of the Deputy Commissioner (North), he was suspended from service under Rule 3 (e) (3) (i) of the Tamil Nadu https://hcservices.ecourts.gov.in/hcservices/ Police Subordinate Service (D&A) Rules. Subsequently, a charge memo dated 04.08.1988 was issued to him containing single charge. An enquiry was conducted by the respondents. On the basis of the enquiry report, the Deputy Commissioner of Police, by order dated 12.03.1989 inflicted the punishment of compulsory retirement from service. The petitioner filed an appeal before the Commissioner of Police. The appellate authority rejected the appeal by an order dated 24.05.1989. Therefore, the petitioner filed a review petition to the Director General of Police on 02.12.1989. During the pendency of the review application, the petitioner filed O.A. No. 1286 of 1990 challenging the order of the disciplinary authority as well as the appellate authority. The Tribunal, by an order dated 19.02.1992, quashed the orders of punishment and directed the Commissioner of Police/appellate authority to consider the matter afresh. Thereafter, the order was not complied, hence, Contempt Application No. 237 of 1992 was filed. In the contempt Petition, The Tribunal passed an order dated 29.01.1993 as follows:- "The applicant is deemed to have been reinstated pending further proceedings and without prejudice thereto on 01.02.1993. Orders relating to the intervening periods should be passed as part of the disciplinary proceedings or under provisions of F.R." 2. In the meantime, the respondents have filed S.L.P.No. 19950 of 1993 (Civil) before the Honourable Supreme Court against the order dated 19.02.1992 of the Tribunal made in O.A. No. 1286 of 1990. The Special Leave Petition was dismissed on 25.01.1996. During the pendency of the Special leave Petition, the petitioner was reinstated in service by order dated 02.02.1993 without prejudice to further action in terms of the Order of the Tribunal dated 19.02.1992. The said order also indicated the spell of suspension underwent by the petitioner from 21.07.1988 to 12.03.1989 and out of employment from 13.03.1989 till the petitioner rejoined duty would be regulated on merit and disposed of in deferrence to the directions of the Tribunal. Accordingly, on 14.03.1993, the petitioner joined duty. Thereafter, the Commissioner of Police passed a detialed order dated 30.06.1994 and modified the punishment of compulsory retirement into one of reduction in time scale of pay by two stages for two years with cumulative effect on sympathetic grounds. It was also ordered that the effect of reduction of punishment will have its effect on pension. Aggrieved by this order, the petitioner preferred a review to the Director General of Police, which was rejected on 19.03.1999. Challenging the same, the petitioner has filed O.A. No. 2463 of 2000 before the Tribunal. 3. Even though no counter has been filed by the respondents, the learned Government Advocate brought the original files and demonstrated that the petitioner was given ample opportunity at every stage. In fact, the Commissioner of Police, on humanitarian grounds, set aside the order of compulsory retirement and imposed the punishment taking into consideration the long pendency of the case. The revisional authority rejected the revision on the ground that the petitioner has not made out any case to set aside the order of the Commissioner inasmuch as he was shown leniency. Furthermore, though https://hcservices.ecourts.gov.in/hcservices/ the Special Leave Petition was dismissed, both on merits as well as on limitation, the petitioner has not made out any case for setting aside the order of the Commissioner of Police. Above all, the learned Government Advocate also brought to the notice of this Court that subsequent to the passing of the order by the Commissioner, pending the review, the petitioner was charge sheet for three other delinquencies and for all those delinquencies, he was given punishment. In other words, the petitioner was a chronic wrong-doer and he does not deserve any more sympathy, which was already shown to him. 4. Heard both sides. The main argument made by the counsel for the petitioner is that even though the Commissioner of Police, after remand, has passed a detailed order, yet, the reviewing authority has not passed any order or given reason for his conclusion. Furthermore, the reviewing authority mechanically noted in his order that the Special Leave Petition was dismissed by the Honourable Supreme Court on the ground of limitation and not on merits. Whereas, the Order passed by the Honourable Supreme Court in the Special Leave Petition would indicate that it was not dismissed on the ground of limitation but also on merits. Therefore on this one vital point, the matter has to be remitted back. 5. On perusal of the order passed by the reviewing authority, it is seen that the reviewing authority, after going through the records, has stated that the guilt of the delinquent is proved. In fact, in para-7, the reviewing authority has concluded that the delinquent was also given a personal hearing and even after that no new grounds was made out. It was also recorded that the punishment in question is not excessive. But only in the last paragraph, by mistake, it was recorded that the Special Leave Petition was dismissed only on the ground of delay and not on merits. This is a minor error committed by the reviewing authority but that by itself cannot be taken into consideration because the reviewing authority, after recording that no fresh grounds were urged for re-consideration in the matter rejected it by recording reasons. Therefore, it cannot be stated that reviewing authority has not considered the review at all in a proper perspective. Hence, WP No. 49460 of 2006 is dismissed. No costs. WP No. 36371 of 2006 6. The learned counsel for the petitioner contended that originally, the petitioner was imposed with punishment of compulsory retirement by the Deputy Commissioner of Police, by order dated 12.03.1989. Challenging the same, he filed an appeal, which was rejected on 24.05.1989. Therefore, the petitioner filed a review petition to the Director General of Police on 02.12.1989. During the pendency of the review application, the petitioner filed O.A. No. 1286 of 1990 challenging the order of the disciplinary authority as well as the appellate authority. The Tribunal, by an order dated 19.02.1992, quashed the orders of punishment and directed the Commissioner of Police/appellate authority to consider the matter afresh. The respondents have filed S.L.P.No. 19950 of 1993 (Civil) before the Honourable Supreme Court against the order dated 19.02.1992 of the Tribunal made in O.A. No. 1286 of 1990. The https://hcservices.ecourts.gov.in/hcservices/ Special Leave Petition was dismissed on 25.01.1996. During the pendency of the Special leave Petition, the petitioner was reinstated in service by order dated 02.02.1993 without prejudice to further action in terms of the Order of the Tribunal dated 19.02.1992. The said order also indicated the spell of suspension underwent by the petitioner from 21.07.1988 to 12.03.1989 and out of employment from 13.03.1989 till the petitioner rejoined duty would be regulated on merit and disposed of in deferrence to the directions of the Tribunal. Accordingly, on 14.03.1993, the petitioner joined duty. Thereafter, the Commissioner of Police passed a detialed order dated 30.06.1994 and modified the punishment of compulsory retirement into one of reduction in time scale of pay by two stages for two years with cumulative effect, however, the said order would have its effect on pension. Aggrieved by this order, the petitioner preferred a review to the Director General of Police, which was rejected on 19.03.1999. Challenging the same, the petitioner has filed O.A. No. 2463 of 2000 before the Tribunal, which was transferred and re- numbred as WPNo. 49460 of 2006 and this was dismissed by this Court today. 7. In so far as the present Writ Petition No. 36371 of 2006 (OA. No. 4739 of 1998) is concerned, the petitioner only claims that after the order passed by the Tribunal in O.A. No. 1286 of 1990 setting aside the punishment orders, he was not reinstated and only after filing of Contempt Petition and an order passed in the Contempt Petition, he was reinstated in service. Therefore, the period during which the petitioner was suspended and not on duty should be considered as on duty and not to be treated as leave. Therefore, the petitioner has made representation to regulate the above said period, but the Joint Commissioner of Police informed him that his request for regulating the above mentioned period of out of employment would be taken up only after disposal of the Special Leave Petition before the Honourable Supreme Court. After dismissal of the Special Leave Petition on 25.01.1996, the respondent passed an order dated 18.12.1997 stating that the regularised period of suspension from 21.07.1988 to 25.03.1989 and the period out of employment from 26.03.1989 to 13.02.1983 shall be trated as leave to which the petitioner is eligible excepting earned leave. Aggrieved by the said order dated 18.12.1997, the present Writ Petition No. 36371 of 2006 (O.A.No. 4739 of 1998) has been filed. The order dated 18.12.1997 of the respondent is challenged on the ground that it is contrary to FR 54-A (3). When the respondent has reinstated the petitioner in service pursuant to the order of the Tribunal, the petitioner's period of suspension and out of employment has to be treated as duty and not otherwise. In fact, the wording is very clear in FR 54-A (3) that "shall be treated as duty for all purpose". This is a mandatory one and therefore, the order passed by the respondent is legally not sustainable. Moreover, before passing the order dated 18.12.1997, the respondent ought to have given notice to the petitioner, but the same was not done in this case, hence, it is violative of the principles of natural justice. 8. The learned Government Advocate brought to the notice of this Court that inasmuch as the very punishment imposed on the petitioner has been upheld by this Court in WP No. 49460 of 2006, the relief sought for by the petitioner need not be granted. Even other https://hcservices.ecourts.gov.in/hcservices/ wise, the impugned order is in accordance with FR 54-B since the petitoner was kept under suspension and that period was only ordered to be treated as leave to which the petitioner is eligible. 9. Heard both sides. Before dealing with the rival submission of the counsel for both sides, it is necessary tolook into FR 54-A (3) which reads as follows:- "If the dismissal, removal or compulsory retirement of a Government Servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for theperiod, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be." 10. It is to be mentioned that the order dated 18.12.1997 impugned in this writ petition has been passed without an enquiry or giving an opportunity to the petitioner to putforth his case. Whereas, the respondent, based on the earlier order of the Tribunal, though directed to reinstate the petitioner, did not permit the petitioner to join duty which compelled him to file a contempt petition. Only after a direction was given in the Contempt Petition, the petitioner was reinstated. Therefore, the only question to be considered is whether FR 54-A (3) is applicable to the case of the petitioner or not. 11. It is clearly stated in FR 54-A (3) that If the dismissal, removal or compulsory retirement of a Government Servant is set aside by the Court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for theperiod, to which he would have been entitled, had he not been dismissed, removed or compulsorily retired or suspended prior to such dismissal, removal or compulsory retirement as the case may be. In this case, the petitioner was reinstated in service pursuant to the order of the Court setting aside the earlier order of compulsory retirement from service. Under those circumstances, the interregnum period of suspension and out of employment of the petitioner has to be treated as duty for all purposes. Moreover, in the impugned order, no reason has been assigned by the respondent as to why the period shall not be treated as duty and it shall be treated as leave. As stated supra, even before passing the impugned order, no notice has been given to the petitioner or any enquiry has been conducted and therefore the impugned order is violative of the principles of natural justice. Moreover, the respondent has not followed the FR 54 while passing the https://hcservices.ecourts.gov.in/hcservices/ impugned order. Merely because subsequently the punishment has been confirmed, that by itself will not disentitle the petitioner from getting the benefit of treating the leave period as duty. Moreover, when the impugned order was passed by the respondent, the petitioner was in duty and therefore, his period of absence has to be treated as duty because on that day the question of the suspension become final does not arise. Under those circumstances, the impugned order is liable to be set aside and accordingly it is set aside. The writ petition is allowed and the matter is remitted back. The respondent is directed to pass orders on merits and in accordance with FR 54A (3) within a period of three months from the date of receipt of a copy of this order, after giving an opportunity to the petitioner. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar rsh To 1. The Director General of Police Chennai – 600 004 2. The Commissioner of Police Egmore, Chennai – 600 008 2 cc to Mr.K.V.Srinivasa Raghavan, Advocate, Sr.No.24861, 24860 1 cc to Government Pleader, Sr.No.24990,24991 WP Nos. 36371 and 49460/2006 JSV {CO} TP/18.5.2010. https://hcservices.ecourts.gov.in/hcservices/