Madras High Court
A.John Kennedy vs The Commandant on 14 July, 2023
W.P.No.33314 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.33314 of 2013
and M.P.No.1 of 2013
A.John Kennedy ... Petitioner
-Vs-
1. The Commandant,
TN Special Police IX Battalion,
Manimutharu,
Kalladaikurichi PO,
Tirunelveli District.
2. The Superintendent of Police,
Villupuram District,
Villupuram.
3. The Director General of Police,
Mylapore,
Chennai 4. ... Respondents
Prayer:- Writ Petition filed under Article 226 of Constitution of India for the
issuance of Writ of Certiorari, calling for the records of the respondents 1 and 2
in connection with the impugned order passed in C.No.A4/1036/2010 BO
No.295/2012 dated 02.07.2012 and DO No.126/2013 in C.No.N4/40215/2013
dated 15.02.2013 respectively and quash the same and direct the respondents to
treat the period of out of employment as duty with continuity of service and also
upgrade the petitioner as Gr.I Police Constable by taking into consideration the
completion of 10 years of service and grant him all consequential service and
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W.P.No.33314 of 2013
monetary benefits.
For Petitioner : Mr.K.Venkataraman, Senior Counsel
for Mr.M.Muthappan
For Respondents : Mr.V.Veluchamy
Additional Advocate General
ORDER
This Writ Petition has been filed calling for the records of the respondents
1 and 2 in connection with the impugned orders passed in C.No.A4/1036/2010
BO No.295/2012 dated 02.07.2012 and DO No.126/2013 in
C.No.N4/40215/2013 dated 15.02.2013 respectively and to quash the same and
directing the respondents to treat the period out of employment as duty with
continuity of service and also upgrade the petitioner as Gr.I Police Constable by
taking into consideration the completion of 10 years of service and grant him all
consequential service and monetary benefits.
2. Heard the learned counsel for the petitioner and the learned counsel
for the respondents and perused the materials available on record.
3. The Petitioner had entered into the service of Grade II Police constable
through a selection conducted by the Tamil Nadu Uniformed Service
Recruitment Board on 24.05.1999. After training, the petitioner had served in
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W.P.No.33314 of 2013
the TSP IX Battalion, Manimutharu. However, he was declared as deserter by
the first respondent with effect from 07.05.2004, followed by the charge memo
for deserting the Police Force. After enquiry, the petitioner was awarded with
punishment of removal from service by an order dated 22.12.2004. Thereafter,
on mercy petition dated 21.01.2010, the third respondent cancelled the removal
from service and modified the punishment into postponement of increment for a
period of two years without cumulative effect. Accordingly, the petitioner was
taken back for duty on 30.03.2010 in the Battalion.
4. On the petitioner's willingness, he was transferred to Chennai City
Armed Reserve on 01.04.2010 and subsequently, he was transferred to
Villupuram District on 31.09.2010. Again he was transferred to Law and Order
and he was serving in the Thiyaga Durga Police Station, Villupuram District.
Thereafter, he was issued with a show cause notice dated 28.04.2010 for the
settlement of the period of employment from 22.12.2004 to 29.03.2010. On
receipt of the said show cause notice, the petitioner submitted his reply dated
26.05.2010, requesting that the period may be treated as duty without wages
and the same may be counted for the purpose of seniority. However, the first
respondent, by the proceedings dated 02.07.2012, treated the period from
12.02.2004 to 06.05.2004 as leave with pay and the period out of employment
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W.P.No.33314 of 2013
from 22.12.2004 to 29.03.2010 as leave without pay, thereby, the entire period
is treated without any service benefits. As per the said order dated 02.07.2012,
the second respondent issued the revision of pay orders on 15.02.2013, thereby,
the entire service rendered from 2004 to 2010 is not counted for any purpose
including notional fixation of pay.
5. The learned Senior counsel appearing for the petitioner submitted that
the petitioner is entitled to count his period of service for continuity of service
and also eligible for notional fixation of pay, which cannot be denied to the
petitioner by any stretch of imagination in pursuance of the service rules. He is
also eligible for upgradation as Grade-I PC on completion of 10 years of service
in the year 2009. In view of the fact that the modified punishment imposed on
12.03.2010 will have no consequence on the upgradation of the petitioner as
Grade-I PC in the year 2009, since the punishment has to be given effect from
2002 to 2004, besides the guidelines relating to punishment suffered during the
check period will have no consequence in view of the Judgment passed by this
Court.
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W.P.No.33314 of 2013
6. He relied upon the Judgment of the Hon'ble Division Bench of this
Court in W.A.No.58 of 2011 in the case of R.Ramesh Vs Deputy Inspector
General of Police and others, wherein this Court held as follows:-
“................we are prima facie of the view that the
punishment imposed on the appellant is disproportionate to
the charge leveled against him and it is in fact, shocking the
conscience of this Court. We, therefore, allow this writ
appeal, set aside the impugned judgment passed by the
learned single judge and remit back the matter to the
disciplinary authority, viz, the second respondent herein, to
reconsider the matter with regard to the quantum of
punishment imposed on the appellant and to take a decision
within six weeks from today. It is made clear that in the event
the quantum of punishment imposed on the appellant is
reduced, he shall not make any claim with regard to wages
for the period he has not performed his duty, but the
continuity of service will not be affect...................”
7. Subsequently, the said order was implemented and the delinquent
was imposed with a lesser punishment of stoppage of increment for a period of
one year without cumulative effect by the Director General of Police, Chennai
and he was reinstated into service. It was also followed in subsequent
Judgment, wherein a person who has committed the delinquency of absence
from duty on 4 occasions and desertion for 4 occasions was ordered to be
reinstated into service. Therefore, the petitioner herein is also entitled to the
same relief of continuity of period in which he was out of employment,
otherwise, even after reinstatement, he might not get upgradation on par with
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W.P.No.33314 of 2013
his junior.
8. A perusal of the counter filed by the respondents revealed that after
imposing of capital punishment, the petitioner had neither preferred any appeal
nor filed review before the respective authority. He had preferred a mercy
petition to set aside the punishment awarded to him after prolonged period of 5
years. On showing leniency, his mercy petition was modified into punishment
of postponement of increment for a period of two years which shall not affect
his future increments as per 15A (i) (ii) of TNPSS (D and A) Rules, 1955.
Accordingly, the petitioner was taken back for duty and he had reported for
duty on 30.03.2010. In respect of settlement of his out of employment, an
explanation was called for from him. On receipt of explanation, as per the
instruction issued by the third respondent and as per ruling (1) (a), the period
spent by the petitioner under out of employment for the period from 22.12.2004
to 29.03.2010 was treated as eligible leave.
9. The learned Senior Counsel appearing for the petitioner also relied
upon similar Judgment of this Court which indicates that the continuity of the
petitioner's service should not be affected. As per the directions of this Court,
what could be denied to the petitioner is the payment of his arrears of salaries
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W.P.No.33314 of 2013
for the period of his non-employment between 22.12.2004 to 29.03.2010. Apart
from that, all other service benefits, including notional pay fixation, requires to
be extended to the petitioner, including the notional promotions. The total
period of five years and three months from 22.12.2004 to 29.03.2010 was
treated as LWP (P) in which the punishment imposed on the petitioner of
postponement of increment for a period of two years can be deducted and the
remaining period of three years and three months can be considered as
qualifying service for calculation of 10 years of service for upgradation of
Grade-I PC and that period also can be considered for his continuity of service.
10. In view of the above, the impugned orders passed in
C.No.A4/1036/2010 BO No.295/2012 dated 02.07.2012 and DO No.126/2013
in C.No.N4/40125/2013 dated 15.02.2013 are hereby set aside. The
respondents are directed to treat the period of three years and three months as
qualifying service for calculation of 10 years of service for upgradation of
Grade-I PC and for his continuity of service.
11. In the result, this writ petition stands allowed. Consequently,
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W.P.No.33314 of 2013
connected Miscellaneous petition is closed. There shall be no order as to costs.
14.07.2023
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
mn
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W.P.No.33314 of 2013
To
1. The Commandant,
TN Special Police IX Battalion,
Manimutharu,
Kalladaikurichi PO,
Tirunelveli District.
2. The Superintendent of Police,
Villupuram District,
Villupuram.
3. The Director General of Police,
Mylapore,
Chennai 4.
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W.P.No.33314 of 2013
G.K.ILANTHIRAIYAN, J.
mn
W.P.No.33314 of 2013
14.07.2023
https://www.mhc.tn.gov.in/judis
