Madras High Court
K.Arunachalam vs The Additional Director on 21 September, 2023
W.P No.31638 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2023
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
W.P.No.31638 of 2019
And
W.M.P.No. 4404 of 2020
K.Arunachalam ... Petitioner
-Vs-
1. The Additional Director
Survey and Land Records Department
Chepauk, Chennai – 600 005.
2. The Assistant Director of Survey and Land Records
Thiruvallur.
3. The State of Tamil Nadu rep.
by its Principal Secretary
Revenue Department
Fort St. George, Chennai -9. ... Respondents
PRAYER: Writ Petition under Article 226 of the Constitution of India
praying for a Writ of Certiorarified Mandamus calling for the records
relating to the second respondent's order made in Na.Ka.A7.295/10 dated
Page 1 of 12
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W.P No.31638 of 2019
15.05.2018 to quash the same and to consequently direct the respondents to
regulate the services between the date of suspension and that of date of
superannuation of the petitioner as Duty for all purposes as per Rule 54-B
of Fundamental Rules and the Rulings thereunder and to extend all benefits
both service and monetary including revision of appropriate pension and
other pensionary benefits thereto.
***
For Petitioner : Mr. L.Chandrakumar
For Respondents : Mr. T.K.Saravanan
Government Advocate
ORDER
The Writ Petition has been filed in the nature of Certiorarified
Mandamus calling for the records of the second respondent / the Assistant
Director of Survey and Land Records, Thiruvallur, dated 15.05.2018 and to
quash the same and to direct the respondents to regulate the services
between the date of suspension and the date of superannuation of the
petitioner as duty for all purposes as per Rule 54(b) of Fundamental Rules
and the Rulings thereunder and also to extend the service and monetary
benefits.
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W.P No.31638 of 2019
2. The petitioner was working as Sub Inspector of Survey at
Ambattur. He was placed under suspension on the allegation that he
demanded bribe amount. A criminal complaint was also lodged and other
investigation, the learned Special Judge / Chief Judicial Magistrate,
Tiruvallur, had taken cognizance of the final report as Special Case No. 18
of 2010. By a Judgment dated 24.05.2017, the petitioner was acquitted of
all charges.
3. Simultaneously, disciplinary proceedings had also been
initiated against the petitioner herein. But the issue before this Court is the
issue relating to the period during which the petitioner was placed under
suspension. He continued to be in suspension till the date of acquittal in the
criminal Court. Thereafter, disciplinary proceedings proceeded and since
the charges had been held proved, a punishment of recovery of Rs.3,000/-
from the pension of the petitioner for a period of three years was imposed
by proceedings dated 05.04.2018.
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W.P No.31638 of 2019
4. In this Writ Petition, the issue is about the period of suspension
which commenced on 13.01.2010 and continued till his date of retirement
on attaining the age of superannuation on 31.07.2014 and whether the same
can be considered as one on duty and of payment of all monetary and other
benefits for the said period.
5. In the impugned order, however, the respondents proceeded to
treated the period between 13.01.2010 and 09.09.2010 for a total period of
240 days as leave on Earned Leave. The respondents also treated the period
from 10.09.2010 to 08.03.2011 for a period of 180 days as a period of leave
on half pay. The respondents thereafter took the remaining period from
09.03.2011 till 31.07.2014 for a period of 1241 days as leave on loss of total
pay. This order of the respondents is tested in the present Writ Petition.
6. A counter affidavit had been filed on behalf of the respondents
wherein such classification of the leave period had been justified on the
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W.P No.31638 of 2019
ground that clarification had been issued in Fundamental Rules 54 in
G.O.Ms.No. 261, Personnel and Administrative Reforms (FR-II)
Department dated 04.08.1992. It had been stated in the counter affidavit as
follows:-
"
Points Clarification
Where a Government Servant is acquitted If he/she is reinstated in view of the
by Court for a criminal offence but specific order or direction of the Court the
subsequently imposed a penalty in the period of suspension has to be treated as
departmental action taken under Rule 17(b) duty, even though subsequently a penalty is
of the Tamil Nadu Civil Services (CCA) imposed on him/her for the same charges in
Rules for the same charges not with this departmental action and in other cases
standing the fact that he was acquitted the period of suspension may be regulated
earlier by the Court. under Fundamental Rule 54.
"
7. It had thereafter been stated that as per FR -54 and the
clarification issued in G.O.Ms.No. 261 dated 04.08.1992, the period of
suspension had been regularised as stated in the impugned order. It had also
been stated that in accordance with the same, necessary pay and allowance
for the said period had been disbursed to the petitioner herein after
adjusting the subsistence allowance already paid. Even though not
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W.P No.31638 of 2019
specifically stated in the counter affidavit, during the course of arguments
on the side of the respondents, reliance was also placed G.O.Ms.No. 157,
Personnel and Administrative Reforms (FR.III) Department dated
24.06.1994 and very specifically to the following:-
“3. According to Rule 17(1) of the above Rules, a
permanent Government Servant in Basic Service
who has not completed five years of regular
service, earns leave at the rate of one-twenty
second of the period spent on duty subject to a
maximum of 60 days and one who has completed
five years of regular service earns leave at the
rate of one-eleventh of the period spent on duty
subject to a maximum of 240 days. If a
Government Servant in Tamilnadu Basic Service
is an approved probationer, he shall earn leave as
in sub-rule (1) of rule (17) and if he has not
completed his probation, he shall earn leave at
the rate of one-twenty-second of the period spent
on duty subject to a maximum of thirty days.
(Rule 20(ii) of TNLR).”
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W.P No.31638 of 2019
8. It had been contended that the petitioner had been subsequently
imposed with punishment of cut of Rs.3,000/- per month from the pension
and it has therefore been stated that the petitioner should suffer for the
period under which he was under suspension and that the respondents are
justified in treating the period as aforementioned as earned leave, earned
leave on private affairs with half pay and leave on loss of pay.
9. Heard arguments.
10. The learned counsel for the petitioner had placed reliance on
FR 54(b) and more particularly to clauses 9 & 10 which are as follows:-
“9. Where a Government servant is,-
(a) Placed under suspension in view of the fact
that a complaint against him of any criminal
offence is under investigation or trial; or
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W.P No.31638 of 2019
(b) dismissed or removed from service or
compulsorily retired on the ground of conduct
which has led to his conviction on a criminal
charge and the Government servant is
subsequently reinstated in service on his
acquittal by the Court either on merits or on
the ground that the charge has not been proved
against him or by giving benefit of doubt or on
any other technical ground, or on the ground
that he has been pardoned by the Court as he
turned approver based on his judicial
confession, he must be regarded as having
been prevented from discharging his duties and
the period of his absence including the period
of suspension shall be treated as duty for all
purposes and he shall be paid full pay and
allowances which he would have been entitled
to, had he not been under suspension, or
dismissed or removed or compulsorily retired
from services.
10. When a Government servant, who was
suspended, is fully exonerated of the charges
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W.P No.31638 of 2019
on appeal, the period of suspension shall be
treated as duty; and he shall be entitled to pay
and allowances for the entire period of
suspension, provided the period of suspension
ended before the date of his superannuation.”
11. The learned counsel did not complicate the issue but gave a
plain reading of the said provision and stated that in accordance with Rule
54(b) if a Government Servant had been dismissed or removed from service
which had led to conviction and later had been acquitted, then the period of
his absence including the period of suspension shall be treated as duty for
all purposes and that he should be paid full pay and allowance which he
would be entitled if he had not been under suspension.
12. The issue therefore comes down to considering as to how the
period of suspension would have to treated had the petitioner not been
suspended. It would be only logical to hold that he would have been
permitted to discharge his duties and for that he would have been paid
normal salary. Though he was placed under suspension from 13.01.2010 till
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W.P No.31638 of 2019
the date of his retirement on attaining the age of superannuation, since he
had been acquitted of all charges, and since the Fundamental Rules
provided that the said period of suspension should be treated as one of duty
for all purposes, it would only follow that the petitioner is entitled to all
benefits which would have accrued to him, had he worked. The reliance on
the respondent to adjust the period under three separate heads, earned leave
for 240 days and earned leave on half day on private affairs and as
substantial period as leave with loss of pay cannot be justified.
13. In the impugned order, however, there is no reference either to
G.O.Ms.No. 157 or to FR – 54 (b) which had been extracted above. It
would only be appropriate that the respondents apply their mind to this
particular aspect. In view of that particular reasonings, the impugned order
is set aside.
14. A direction is given to the second respondent /Assistant
Director of Survey and Land Records, Thiruvallur, to re-examine the case of
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W.P No.31638 of 2019
the petitioner particularly because in the criminal case while passing the
order of acquittal, the learned trial Judge had stated, “in the above said
circumstances and discussions supra, this Court has come to the conclusion
that the prosecution has miserably failed to prove its case and the charges
levelled against both A1 and A2 beyond all reasonable doubts.”
15. The extract above would show that the charges have not been
proved at all and as a matter of fact, very strong words have been used
“miserably failed to prove its case”. The entire exercise by the second
respondent should be completed within a period of 12 weeks from the date
of receipt of a copy of this order and if the second respondent is of the
opinion that since the petitioner had retired and that he would not have the
necessary powers to pass necessary orders, he may forward the papers to the
third respondent for appropriate directions but still the time period of 12
weeks shall be retained. The Writ Petition stands disposed of. No order as
to costs.
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W.P No.31638 of 2019
C.V.KARTHIKEYAN,J.
vsg
16. In view of this particular direction given in the Writ Petition,
W.M.P.No. 4404 of 2020 is dismissed.
vsg 21.09.2023
Index:Yes/No
Neutral Citation:Yes/No
To
1. The Additional Director
Survey and Land Records Department
Chepauk, Chennai – 600 005.
2. The Assistant Director of Survey and Land Records
Thiruvallur.
3. Principal Secretary
The State of Tamil Nadu
Revenue Department
Fort St. George, Chennai -9.
W.P.No.31638 of 2019
And
W.M.P.No. 4404 of 2020
https://www.mhc.tn.gov.in/judis
