Madras High Court
M.Basheer vs The Principal Secretary To ... on 22 August, 2023
WP.No.36213/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 22.08.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.36213/2016 & WMP.No.31148/2016
M.Basheer ... Petitioner
Versus
1.The Principal Secretary to Government
Home [Pol.V] Department, Fort St George
Chennai 600 009.
2.The Director General of Police
Mylapore, Chennai 600 004.
3.The Joint Commissioner of Police-South Zone
St Thomas Mount, Chennai 600 016.
4.The Deputy Commissioner of Police
St Thomas Mount, Chennai 600 016.
5.The Deputy Commissioner of Police
Thyagarayanagar District, T.Nagar
Chennai 600 017. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
India praying for issuance of a writ of certiorarified mandamus calling for
the records in connection with the charge memo Tha.Ko.No.101/
1
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WP.No.36213/2016
Tha.Pee(South)/05 u/r 3b dated 29.5.2005 issued by the 5th respondent
herein and the order of punishment C.No.PR No.101/ PR.(S)(1)/ 2005; Z.O.
No.646/2006 (South) dated 2.10.2006 issued by the 4th respondent herein
and the order of rejection on appeal Rc.No.Appeal.11/ PR.II(S)/2006 dated
1.11.2006 passed by the 3rd respondent herein and the order of rejection on
Mercy Petition Rc. No.23292/ AP.3(3)/2008 dated 19.5.2008 passed by the
2nd respondent and the order of rejection on petition G.O.(2D) No.403
dated 11.11.2014 passed by the 1st respondent herein and quash the same
consequently direct the respondents to regularize the petitioner's period of
suspension and revise the petitioner's pay along with batch mates.
For Petitioner : Dr.R.Sampathkumar
For Respondents : Mr.R.Neethi Perumal, GA
ORDER
(1) The writ petition has been filed in the nature of a certiorarified
mandamus seeking records relating to a charge memo dated
29.05.2005 issued by the 5th respondent / Deputy Commissioner of
Police, T.Nagar at Chennai to the petitioner herein and the
consequent order of punishment dated 02.10.2006 issued by the 4th
respondent / Deputy Commissioner of Police, St.Thomas Mount,
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WP.No.36213/2016
Chennai and the order rejecting the appeal given by the petitioner
herein dated 01.11.2006 passed by the 3rd respondent / Joint
Commissioner of Police, South Zone at St. Thomas Mount in Chennai
and the final order rejecting the Mercy Petition given by the petitioner
dated 19.05.2008 passed by the 2nd respondent / Director General of
Police, Tamil Nadu and the order of rejection passed by the 1st
respondent / Principal Secretary to Government, Home [Pol.V]
Department, Chennai, dated 11.11.2014. The petitioner seeks
regularisation of the period of suspension and to revise the pay of the
petitioner along with his batch mates.
(2) In the affidavit filed in support of the writ petition, it had been stated
that at the time of filing of the writ petition, the petitioner was
working as Special Sub Inspector of Police. During 2004, an FIR in
Crime No.286/2004 was registered against him on the file of E4,
Maduravoyal Police Station. Subsequent to investigation, a Final
Report was filed before the jurisdictional Magistrate Court and taken
cognizance as CC.No.3265/2004. It had been stated that he had been
acquitted of all charges on 16.09.2005. But however, the respondents
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WP.No.36213/2016
had proceeded against him departmentally and in this connection, a
charge memo dated 29.05.2005 was served on him. Two charges
which had been framed. The first was that he was involved in a
criminal case in Cr.No.286/2004 on the file of E4 Maduravoyal
Police Station and was remanded to custody and after coming out on
bail, under the 2nd charge was that he received salary without doing
any work in the Station from March 2004 to November 2004. During
the enquiry proceedings, which is not impugned in the present writ
petition, charges were held to be proved and originally, an order of
compulsory retirement was passed. Thereafter, the petitioner filed an
appeal and finally, the 2nd respondent/Director General of Police, had
reduced the punishment as three stages reduction in the time scale of
pay for three years affecting future emoluments. The appeals filed by
the petitioner had been rejected. But the respondents had not hold
this punishment against the petitioner so far as his service is
concerned and they had actually promoted him to the post of Special
Sub Inspector of Police by an order dated 23.06.2016.
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WP.No.36213/2016
(3) Dr.Sampathkumar, learned counsel for the petitioner pointed out the
final order dated 23.06.2016 passed on a review filed by the petitioner
wherein it had been stated that the period of absence between
02.12.2006 and 08.10.2010 was considered as unearned leave,
whereas, the period between 30.10.2007 till 08.07.2010 was treated
as loss of pay. It was therefore, contended by the learned counsel for
the petitioner that this period should be regularised.
(4) In this connection, the learned counsel placed reliance on a Division
Bench judgment of the Bombay High Court in WP.No.36689/2005
[Union of India, through the Secretary, Ministry of Defence and
Another Vs. Deepak Arjun Malwadkar [now deceased] through
Legal Representative]. That was a case wherein the deceased /
respondent, faced charges on the ground that his wife had suffered
burn injuries. An FIR was registered under Sections 307, 498-A and
506 read with 34 of IPC. He was also arrested. But however, after
going through the criminal trial process, he was acquitted. The one
point which the learned counsel sought to place reliance in the
aforementioned judgment was that the deceased / respondent therein
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WP.No.36213/2016
had been acquitted in the criminal case, and it was held that he would
be entitled to get his suspension period regularised as the period on
duty and back wages and continuity in service should also be granted.
However, in the very same judgment, a reference was made to an
earlier judgment of the Hon'ble Supreme Court reported in AIR 1984
SC 380 [Brahma Chandra Gupta Vs. Union of India], wherein, the
Hon'ble Supreme Court had held that it was only a discretion on the
part of the authorities to consider regularisation of the period for
which a delinquent was placed under suspension. The Hon'ble
Supreme Court stated that 3/4th of the salary could be paid during
that particular period. The ratio in both the judgments is in so far as
the leave period or period of suspension is concerned and the manner
in which it should be considered as a discretion vested with the
authorities. There cannot be a straight rule or law laid down as to
how the period should be considered. It would all depend on the facts
and circumstances of each case. In the instant case, the petitioner was
a personnel of the Uniformed Services and he had himself been
implicated in an offence and thereafter, though it had been stated that
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WP.No.36213/2016
he had been acquitted of the charges during the criminal trial, still
during the departmental enquiry, the charges stood proved. Neither
the procedure adopted during criminal trial nor the punishment
imposed, has been questioned before this Court.
(5) The only issue is with respect to this period between 2007 and 2010
which had been treated by the respondents as leave on loss of pay.
The learned counsel therefore made a plea that it should be
regularised and necessary back wages should also be granted to the
petitioner. But however that would be stretching a little too far and I
would therefore, modify that particular discretion exercised by the
respondents, as one of considering it as on duty. The said period is to
be considered towards the number of years to be taken into
consideration for calculation of pension and to that extent, the
pensionary benefits may be revised by the respondents herein.
(6) After this order has been dictated, Dr.R.Sampathkumar, again made a
plea that some consideration should be given towards grant of some
portion of the salary for that particular period.
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(7) Let salary at 25% of that particular period be granted to the petitioner
towards calculation of pensionary benefits alone.
(8) The writ petition stands disposed of. No costs. Consequently,
connected miscellaneous petition is closed.
22.08.2023
AP
Internet : Yes
To
1.The Principal Secretary to Government
Home [Pol.V] Department, Fort St George
Chennai 600 009.
2.The Director General of Police
Mylapore, Chennai 600 004.
3.The Joint Commissioner of Police-South Zone
St Thomas Mount, Chennai 600 016.
4.The Deputy Commissioner of Police
St Thomas Mount, Chennai 600 016.
5.The Deputy Commissioner of Police
Thyagarayanagar District, T.Nagar
Chennai 600 017.
https://www.mhc.tn.gov.in/judis
WP.No.36213/2016
C.V.KARTHIKEYAN, J.,
AP
WP.No.36213/2016
22.08.2023
https://www.mhc.tn.gov.in/judis
