S.Vetrivel vs The Director General Of Police /Prisons ...
2024 Latest Caselaw 19297 Mad

Madras High Court

S.Vetrivel vs The Director General Of Police /Prisons ... on 14 October, 2024

Author: R.Vijayakumar

Bench: R.Vijayakumar

                                                                          W.P(MD).No.22233 of 2024


                            BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                        ORDER RESERVED ON              : 03.10.2024

                                       ORDER PRONOUNCED ON :               14.10.2024

                                                 CORAM:
                                  THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR

                                            W.P.(MD).No.22233 of 2024
                                         and WMP(MD).No.18791 of 2024


                     S.Vetrivel                                                  ....Petitioner

                                                           Vs


                     1.The Director General of Police /Prisons and
                        Correctional Service
                     Egmore, Chennai -8

                     2.The Superintendent of Prisons
                     Central Prison
                     Trichy                                                    ….Respondents

                     Prayer : This Petition filed under Article 226 of the Constitution of India, to
                     issue a Writ of Certiorarified Mandamus to call for the records pertaining to
                     the order passed by the respondent No.2 in No.1802/ngh.2/2019-1 dated
                     19.03.2024 and quash the same and further direct the respondent to regularise
                     the period of suspension of the petitioner from 05.02.2019 to 05.04.2023 as
                     period of service for all purpose following Tamil Nadu Fundamental Rules,
                     pay the back-wages and other benefits including increments.



https://www.mhc.tn.gov.in/judis

                     1/9
                                                                                W.P(MD).No.22233 of 2024



                                        For Petitioner      : Mr.T.S.Mohamed Mohideen

                                        For Respondents     : Mr.S.Shaji Bino
                                                            Special Government Pleader

                                                           ORDER

A Grade-II Constable working in the Central Prison, Trichy has filed

the instant writ petition challenging an order passed by the second respondent

herein wherein the period of suspension between 05.02.2019 to 10.04.2023

has been treated as extraordinary leave on loss of pay.

2.According to the learned counsel appearing for the writ petitioner, he

was suspended for his involvement in a criminal case on 05.02.2019 and he

was issued with a charge memo under Rule 17(b) of the Tamil Nadu Civil

Services (Discipline and Appeal) Rules. The petitioner was acquitted from the

criminal case on 04.01.2023 on the ground of benefit of doubt.

3.On 03.04.2023, the order of suspension was revoked and the

petitioner was reinstated in service. On 26.04.2023, the petitioner was

exonerated from all the charges. Thereafter, the present impugned order has

been passed treating the period of suspension as extraordinary leave on loss

of pay.

4.The learned counsel for the writ petitioner had relied upon Rule

54(B)(9) of the Tamil Nadu Fundamental Rules had contended that the

https://www.mhc.tn.gov.in/judis

suspension of the petitioner is only traceable to the pendency of the criminal

case. The charge memo was issued two months after the order of suspension.

The petitioner has been exonerated from all the charges and therefore, the

entire suspension period should be treated as a duty period.

5.The learned counsel had relied upon two Division Benches

judgments in W.A.No.1430 of 2013 dated 02.09.2013 and W.A.No.1026 of

2016 dated 06.09.2016 to impress upon the Court that once the suspension

order is traceable to a criminal case and after acquittal, an employee is

reinstated, the suspension period should be treated as duty period.

6.Per contra, the learned Special Government Pleader appearing for the

respondents herein extensively relying upon the counter contended that the

petitioner was under suspension only pursuant to a charge memo issued under

Section 17(b) of Tamil Nadu Civil Services (Discipline and Appeal) Rules.

Only after exoneration, the petitioner has been reinstated. During the

non-employment period, the petitioner has received 50% of subsistence

allowance. There was a delay on the part of the writ petitioner in submitting

his explanation to the charge memo. Therefore, the delay is attributable only

to the writ petitioner. That apart, the writ petitioner being under probation, he

is not entitled to avail earned leave. In such circumstances, the

non-employment period has to be treated only as an extraordinary leave on

loss of pay. Hence, he prayed for dismissal of the writ petition. https://www.mhc.tn.gov.in/judis

7.I have considered the submissions made on either side and perused

the material records.

8.The primary grievance of the writ petitioner is that the suspension

period should not have been treated as extraordinary leave on loss of pay, but

should have been treated as a duty period, in view of Rule 54(B)-1(9) of

Fundamental Rules.

9.Rule 54(B)-1(9) of Tamil Nadu Fundamental Rules is extracted 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

(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 https://www.mhc.tn.gov.in/judis

suspension, or dismissed or removed or compulsorily retired from service.”

10.A careful perusal of the above said Fundamental Rules makes it

manifest that where a Government servant is placed under suspension in view

of the fact that a complaint against him in a criminal offence is pending and

he is acquitted by the Court either on merits or on benefit of doubt, he must

be regarded as having been prevented from discharging his duties and the

period of suspension shall be treated as duty period 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 service.

11.In the present case, a perusal of the suspension order reveals that the

petitioner is suspended invoking Rule 17(e)(1)(ii) of Tamil Nadu Civil

Services (Discipline and Appeal ) Rules which is extracted as follows:

“17.(e)(1)-A member of a service may be placed under suspension from service, where-

(ii) a case against him in respect of any criminal offence is under investigation, inquiry or trial.”

12.A perusal of the above said Rules reveals that if a case has been

registered as against the Government servant in respect of any criminal

offence and the same is under investigation, enquiry or trial, a Government https://www.mhc.tn.gov.in/judis

Servant could be placed under suspension.

13.Though the petitioner has been suspended on 05.02.2019, he has

been issued with a charge memo only on 27.04.2019. Therefore, it is clear

that the suspension is solely traceable only to the involvement of the writ

petitioner in the criminal case. A charge memo was issued to the writ

petitioner on 27.04.2019. The petitioner was exonerated from the

departmental proceedings by an order dated 26.04.2023. Therefore, it is clear

that the petitioner has been acquitted from the criminal case and exonerated

from the departmental proceedings also. In such circumstances, Rule

54(B)-1(9) of Fundamental Rules which is extracted supra is clearly

applicable to the facts of the present case. Since the petitioner has been

placed under suspension solely on the ground of his involvement in the

criminal case, having been acquitted on benefit of doubt, the entire

suspension period has to be treated as duty period.

14.The petitioner was arrested on 11.03.2019 and he was released on

bail only on 23.03.2019. The period during which the petitioner was in

judicial custody, cannot be treated as duty period.

15.The Hon'ble Division Bench in a judgment in W.A.No.1026 of 2016

dated 06.09.2016 after relying upon the First Bench decision in W.A.No.1430

of 2013 dated 02.09.2013, has proceeded to hold that the suspension period

has to be treated as duty period. However, in the present case, under the https://www.mhc.tn.gov.in/judis

impugned order, the second respondent has treated the said period as

extraordinary leave on loss of pay which is not legally sustainable.

16.In view of the above said deliberations, excluding the period of

judicial custody, remaining period shall be treated as duty period and all the

attendant and monetary benefits, including increments, shall be disbursed to

the writ petitioner within a period of 12 weeks from the date of receipt of a

copy of this order.

17.With the above said deliberations, this writ petition is allowed to the

extent as stated above. No costs. Consequently, connected miscellaneous

petitions are closed.

14.10.2024.

                     Internet : Yes/No
                     Index : Yes/No
                     NCC        : Yes/No
                     msa




https://www.mhc.tn.gov.in/judis





                     To

1.The Director General of Police /Prisons and Correctional Service Egmore, Chennai -8

2.The Superintendent of Prisons Central Prison Trichy

https://www.mhc.tn.gov.in/judis

R.VIJAYAKUMAR, J.

msa

Pre-delivery order made in

14.10.2024

https://www.mhc.tn.gov.in/judis