Madras High Court
A.Stanely vs The Commissioner Of Police on 8 August, 2023
W.P.No.30886 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2023
CORAM :
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
W.P.No.30886 of 2022
A.Stanely ... Petitioner
Vs.
1.The Commissioner of Police,
Avadi Commissionerate,
Avadi, Chennai – 54.
2.The Joint Commissioner of Police,
West Zone, Greater Chennai Police,
Ambattur, Chennai – 58. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus to call for the records in
connection with the impugned order passed by the 2nd respondent in
Rc.No.L.1/(2)/445/10609(A)/2016 in WZO.No.397/2016, dated
15.06.2016, and the impugned rejection order passed the 1st respondent in
Rc.No.PR.I/286/12475/APC/2022, dated 29.10.2022, and quash the same
and to further direct the respondents herein to treat the out of employment
period from 23.01.1999 to 16.11.2014 as duty for all purposes except back
wages as per the Fundamental Rule 54-A(3).
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W.P.No.30886 of 2022
For Petitioner : Mr.K.Venkatramani
Senior Counsel
for Mr.S.Sivakumar
For R1 and R2 : Mr.V.Jeevagiridharan
Additional Government Pleader
ORDER
This writ petition has been filed challenging the order passed by
the 2nd respondent, dated 15.06.2016, and the rejection order passed the 1 st
respondent, dated 29.10.2022 and to direct the respondents herein to treat
the out of employment period from 23.01.1999 to 16.11.2014 as duty for
all purposes except back wages as per the Fundamental Rule 54-A(3).
2.It is the case of the petitioner that he joined the service as
Grade-II Police Constable on 25.10.1984 and was promoted as Grade-I
Police Constable and Head Constable in the year 2021. In the year 1999,
he was implicated in a criminal case for the offences under Sections 341,
326, 427 IPC r/w. Section 4(1)(J) of TNPPD Act and subsequently,
departmental proceedings were initiated against the petitioner and
ultimately, he was removed from service in the departmental proceedings,
challenging which the petitioner filed a writ petition in W.P.No.29189 of
2008 before this Court. This Court, by its order dated 28.11.2013 in
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W.P.No.30886 of 2022
W.P.No.29189 of 2008, set aside the punishment of removal from service
and directed the respondents to reinstate the petitioner into service, treating
the absence period as leave available to his credit. Though this Court held
that the petitioner is not entitled to get any monetary benefits, it is the
contention of the petitioner that he is entitled for the service benefits like
continuity of service, seniority, etc. It is the further contention of the
petitioner that the interregnum period has to be regularised as per
Rule 54-A(3) of Fundamental Rules, however, the respondents, relying
upon the wrong provisions, treated the out of employment period as non-
duty period. Aggrieved by the same, the petitioner has filed the present
writ petition for a direction to the respondents to treat the out of
employment period as duty period with continuity of service, though the
petitioner is not entitled to claim any backwages.
3.A counter affidavit has been filed to the effect that, while
allowing the writ petition filed by the petitioner in W.P.No.29189 of 2008,
this Court has directed the respondents to treat the period of absence from
23.02.1999 as leave available to the credit of the petitioner. Hence, the
claim of the petitioner to treat the period of absence as duty period, is
legally unsustainable. It is stated that the out of employment period from
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W.P.No.30886 of 2022
23.02.1999 to 16.11.2014 has been settled with eligible leave as follows :
i. 23.02.1999 to 13.04.1999 – 50 days as E.L. (PA)
ii. 14.04.1999 to 12.07.1999 – 90 days as UEL (PA)
iii. 13.07.1999 to 16.11.2014 – 5607 days as LWP (PA)
Relying on the counter affidavit, it is the contention of the learned
Additional Government Pleader that, since the period of absence has
already been settled as per the directions of this Court, the prayer in the
present writ petition cannot be sustained in the eye of law.
4.Learned Senior Counsel appearing for the petitioner mainly
relied upon Rule 54-A(3) of Fundamental Rules, which makes it clear that,
even if the backwages are not payable, the period of absence shall be
treated as duty for all purposes. If it is treated as duty, the petitioner is
entitled to continuity of service, though he is not entitled to backwages as
ordered by this Court. Hence, the learned counsel contended that the
impugned order has been passed without proper application of
Fundamental Rules.
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W.P.No.30886 of 2022
5.Per contra, Mr.V.Jeevagiridharan, learned Additional
Government Pleader, appearing for the respondents, submitted that Rule
54-A(1) of Fundamental Rules is applicable to the case on hand and as per
the said Rule, the respondents have taken note of the directions given by
this Court while setting aside the order of punishment and the out of
employment period has been settled as indicated in the counter affidavit
(extracted supra). Therefore, the learned Additional Government Pleader
submitted that the petitioner is not entitled to continuity of service.
6.Heard the learned counsel for the petitioner and the learned
Additional Government Pleader appearing for the respondents and perused
the entire materials available on record.
7.The fact that the punishment of removal from service has been
set aside by this Court, is not in dispute. While setting aside the
punishment, this Court has directed the respondents to reinstate the
petitioner with a direction that the period of absence should be treated as
eligible leave and made it clear that the petitioner is not entitled to any
backwages or monetary benefits. Now, the question is with regard to the
regularisation of the period of absence.
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W.P.No.30886 of 2022
8.Rule 54-A of the Fundamental Rules, reads as follows :
“54-A. (1) Where the dismissal, removal or
compulsory retirement of a Government servant is set aside
by a court of law and such Government servant is reinstated
without holding any further inquiry, the period of absence
from duty shall be regularised and the Government servant
shall be paid pay and allowances in accordance with the
provisions of sub-rule (2) or (3) subject to the directions, if
any, of the court.
(2) (i) Where the dismissal, removal or
compulsory retirement of a Government servant is set aside
by the court solely on the ground of non-compliance with
the requirements of clause (2) of Article 311 of the
Constitution, and where he is not exonerated on merits, the
Government servant shall, subject to the provisions of
subrule (7) of rule 54, be paid such amount (not being the
whole) of the pay and allowances to which he would have
been entitled to had he not been dismissed, removed or
compulsorily retired, or suspended prior to such dismissal,
removal or compulsory retirement, as the case may be, as
the competent authority may determine, after giving notice
to the Government servant of the quantum proposed and
after considering the representation, if any, submitted by
him in that connection, within such period which, in no case
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W.P.No.30886 of 2022
shall exceed sixty days from the date on which the notice
has been served as may be specified in the notice:
Provided that any payment under this sub-rule to a
Government servant shall be restricted to a period of three
years immediately preceding the date on which the
judgment of the court was passed, or the date of retirement
on superannuation of such Government servant, as the case
may be.
(ii) 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
judgment of the court shall be regularised in accordance
with the provisions contained in sub-rule (5) of rule 54.
(3) 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 the period, to which he would have been
entitled, had he not been dismissed, removed or
compulsorily retired or suspended prior to such dismissal,
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W.P.No.30886 of 2022
removal or compulsory retirement as the case may be.
(4) The payment of allowances under sub-rule (2)
or sub-rule (3) shall be subject to all other conditions under
which such allowances are admissible.
(5) Any payment made under this rule to a
Government servant on his reinstatement shall be subject to
adjustment of the amount, if any, earned by him through an
employment during the period between the date of
dismissal, removal or compulsory retirement and the date of
reinstatement. Where the emoluments admissible under this
rule are equal to or less than those earned during the
employment elsewhere, nothing shall be paid to the
Government servant.”
9.Rule 54-A(3) makes it clear that the period of absence
including the period of suspension preceding such dismissal, removal or
compulsory retirement, as the case may be, shall be treated as duty for all
purposes. Rule 54-A(1) makes it clear that, when an order of removal
from service is set aside the Court of Law and the Government servant is
reinstated in service without holding any further inquiry, the period of
absence from duty shall be regularised in accordance with the provisions of
Sub-Rule (2) or (3) subject to the directions, if any, of the Court. Rule 54-
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W.P.No.30886 of 2022
A(2)(ii) makes it clear that the intervening period of absence between the
date of dismissal and the date of judgment of the Court, including the
period of suspension, shall be regularised in accordance with the
provisions contained in Sub-Rule (5) of Rule 54. Rule 54(5) reads as
follows :
“54. ... (5) In a case falling under sub-rule (4),
the period of absence from duty including the period of
suspension preceding his dismissal, removal or compulsory
retirement, as the case may be, shall not be treated as
period spent on duty, unless the competent authority
specifically directs that it shall be treated for any specified
purpose :
Provided that if the Government servant so
desires, such authority may direct that the period of
absence from duty including the period of suspension
preceding his dismissal, removal or compulsory retirement,
as the case may be, shall be converted into leave of any
kind due and admissible to the Government servant.”
10.On a combined reading of the above Rules, this Court is of
the view that, once the punishment of removal from service is set aside by
the Court of Law, Rule 54-A(3) has to be invoked. Therefore, in the given
case on hand, the exact Rule to be applied is Rule 54-A(3) of the
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W.P.No.30886 of 2022
Fundamental Rules. Whereas, the respondents have been carried away by
the directions of this Court. While setting aside the punishment, this Court
has, in fact, made it clear that the petitioner is not entitled to any
backwages or any other benefits and only in that context, a direction is
given to treat the period of absence as leave. Since there is a specific Rule
available in the Statute, viz., Fundamental Rule 54-A(3), providing that the
period of absence has to be treated as continuity of service, particularly
when the backwages is withheld and decided not to be paid to the
Government servant by the Court of Law, the impugned order is
unsustainable in the eye of law.
11.Accordingly, the impugned orders are quashed and the
respondents are directed to treat the period of absence as duty only for the
purpose of continuity of service and it is once again made clear that the
petitioner is not entitled to any backwages. This writ petition is allowed.
No costs.
08.08.2023
mkn
Internet : Yes
Index : Yes / No
Neutral citation : Yes / No
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W.P.No.30886 of 2022
Speaking order / Nonspeaking order
To
1.The Commissioner of Police,
Avadi Commissionerate,
Avadi, Chennai – 54.
2.The Joint Commissioner of Police,
West Zone, Greater Chennai Police,
Ambattur, Chennai – 58.
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W.P.No.30886 of 2022
N. SATHISH KUMAR, J.
mkn
W.P.No.30886 of 2022
08.08.2023
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W.P.No.30886 of 2022
https://www.mhc.tn.gov.in/judis
