G.Bharathi vs The Commandant
2022 Latest Caselaw 9613 Mad

Citation : 2022 Latest Caselaw 9613 Mad
Judgement Date : 8 June, 2022

Madras High Court

G.Bharathi vs The Commandant on 8 June, 2022

                                                                                   Order dated : 08.06.2022
                                                                              Writ Petition No.2752 of 2014

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 08.06.2022

                                                      CORAM

                            THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM

                                           Writ Petition No.2752 of 2014


                G.Bharathi
                S/o.P.Govindaraj                                                     ... Petitioner
                                                          Vs.

                The Commandant,
                Border Security Force,
                194th Battalion, Head Quarter,
                Jaisalmer, Rajantan.                                              ... Respondent

                PRAYER:
                          Writ Petition filed under Article 226 of the Constitution of India praying
                to issue a Writ of Certiorarified Mandamus calling for the records pertaining to
                the impugned order passed by the respondent herein in his proceedings
                No.Estt/194Bn/Misc/13/18349, Head Quarter, 194 Bn BSF, Dabla, Jaisalmer
                dated 13.12.2013 and quash the same and consequently, issue a direction
                directing the respondents herein to treat the period of suspension from
                13.07.2022 to 13.01.2005 as duty for all purposes and further, direct the
                respondents to grant all service and monetary benefits for the above suspension
                period within a time frame.




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                                                                                 Order dated : 08.06.2022
                                                                            Writ Petition No.2752 of 2014

                                  For Petitioner   :     Mr.G.Bala
                                                         for M/s.G.Bala and Daisy

                                  For Respondent   :     Mr.N.Ramesh
                                                         Senior Standing Counsel
                                                        *****

                                                       ORDER

The grievance of the petitioner is that the period of suspension

undergone by the petitioner has not been regularised as duty with full salary.

2. Learned counsel for the petitioner made a submission that a criminal

case has been registered against the petitioner when he was on leave and was

staying in his native place. However, the said criminal case ended with an order

of acquittal and the appeal filed by the de facto complainant was also

dismissed. Thus, the respondent has not proceeded with the departmental

disciplinary proceedings and no charge memo has been issued. Taking into

consideration the judgment of the criminal Court of law, the period of

suspension was regularized. However, arrears of salary have not been paid.

3. Learned counsel for the petitioner reiterated that the petitioner is

eligible for arrears of pay for the period of suspension by treating the period as

duty for all purposes. The said contention is objected by the respondent by https://www.mhc.tn.gov.in/judis

Order dated : 08.06.2022 Writ Petition No.2752 of 2014

stating that the petitioner was on leave with effect from 24.06.2002 to

23.07.2002 and allegedly, committed a criminal offence u/s.302 IPC on

13.07.2002 at his home town. He was suspended on 13.07.2002. The petitioner

stayed at his home town without leave from 13.07.2002 to 13.01.2005 to

defend in the case in the Court of law. Therefore, in terms of GOI Order No.2

under FR-54B, the period of absence from duty of the petitioner was

regularized by granting him Earned Leave (EL) and Half Pay Leave (HPL) at

the credit of the petitioner's account and remaining period was treated as 'Dies-

non' upto 13.01.2005 by the Commandant, 194 Bn BSF vide order No.Estt/194

Bn/Disc-GB/05/4069-72 dated 01.04.2005. The details regarding the

regularization of the suspension period are stated as under:

"(a) Suspension period from 13.07.2002 to 25.09.2002 was regularized by granting 75 days EL.

(b) Suspension period from 26.09.2002 to 31.12.2002 was regularized by granting 97 days HPL.

(c) Suspension period from 01.01.2003 to 30.01.2003 was regularized by granting 30 days EL.

(d) Suspension period from 31.01.2003 to 01.06.2003 was regularized by granting 122 days HPL.

(e) Suspension period from 02.06.2003 to 13.01.2005 i.e. for 592 days was treated ad 'Dies-non' (No pay and allowances shall be paid for the period of 'Dies-non' as per rules)."

4. This Court is of the considered opinion that the petitioner has

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Order dated : 08.06.2022 Writ Petition No.2752 of 2014

admittedly faced the criminal trial, but acquitted by the competent Court of law.

The department has not continued the departmental disciplinary proceedings

after placing the petitioner under suspension. No charge memo has been issued

despite the fact that the criminal case is not a bar for disciplinary proceedings.

The period of leave was regularized so also the period of suspension. However,

the benefit of full salary was not paid. In view of the fact that the period of

suspension was regulated as eligible leave and the applicable benefits were

granted to the petitioner, this Court is not inclined to grant the relief as such

sought for in the present writ petition. However, the period of suspension,