Arokiadoss v. The Commissioner of Police City Police Office Chennai-600 008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30.4.2009CORAMTHE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANW.A.No.673 of 2008Arokiadoss ..Appellant/PetitionerVs.The Commissioner of PoliceCity Police OfficeChennai-600 008. ..Respondent/RespondentPRAYERS: Against the order of the learned Single Judge dated14.2.2006 made in W.P.No.32188 of 2005 Writ Petition to direct therespondent to revise his seniority in the cadre of Grade I PoliceConstable as well as Head Constable at par with his junior and granthim all service and monetary benefits.For Appellant:Mr.K.VenkataramaniSenior Counselfor M/s.M.MuthappanFor Respondent:Mr.R.ThirugnanamSpl. Government PleaderJUDGMENTP.JYOTHIMANI,J.The writ appeal is directed against the order of the learnedSingle Judge dated 14.2.2006 passed in W.P.No.32188 of 2005,dismissing the writ petition filed by the appellant herein, which wastransferred from the Tamil Nadu Administrative Tribunal.2. The appellant has approached the Tamil Nadu AdministrativeTribunal by filing O.A.No.1088 of 2001, praying for a directionagainst the respondent to revise his seniority in the cadre of GradeI Police Constable as well as Head Constable on par with his juniorand to grant him all consequential benefits.3. The appellant was originally appointed as Grade II PoliceConstable on 1.3.1967. On the basis of some charges levelled againsthim, the appellant was dismissed from service by an order dated https://hcservices.ecourts.gov.in/hcservices/

9.2.1988. Subsequently, the order of dismissal has been modified asthat of compulsory retirement, by proceedings of the respondent dated3.3.1988. On his filing a writ petition in W.P.No.5268 of 1988, thematter was remanded back to the respondent, being the appellateauthority. The respondent, originally, by an order dated 21.2.1989upheld the order of compulsory retirement dated 3.3.1988. The appealfiled against the said order to the Director General of Police wasalso dismissed on 25.7.1989. 4. The appellant has filed O.A.No.1461 of 1989 before the TamilNadu Administrative Tribunal against the order of the respondentdated 21.2.1989 and the Tribunal, by order dated 14.9.1993, remandedback the matter to the Commissioner for fresh disposal. However, inthe meantime, the appellant was reinstated into service on 25.7.1994,without prejudice to the disposal of the appeal preferred by him.Subsequently, the respondent passed the order dated 27.9.1994,modifying the order of dismissal from service into one of reductionin time scale of pay by two stages for a period of two years withcumulative effect, and based on the modified punishment imposed, theperiod between 13.8.1987 to 8.2.1988 was ordered to be treated asleave period and the period between 9.2.1988 to 24.7.1994 was settledas eligible leave under F.R.54. It is seen that the appellant wasthereafter promoted as Grade I Police Constable with effect from20.3.1993 and as Head Constable with effect from 21.3.1998.5. The appellant has given representation on 1.10.1999requesting the respondent to give promotion to him as Grade I PoliceConstable with effect from 1989 and as a Head Constable from1.1.1997. Since the said representation was not considered, he hasapproached the Tribunal, as stated above, and the matter stoodtransferred to this Court as writ petition.6. The learned Single Judge, having found that the appellant wasnot exonerated of the charges levelled against him, but only amodified punishment of reduction in time scale of pay by two stagesfor a period of two years with cumulative effect has been imposed,held that the period of suspension cannot be treated as a dutyperiod. In as much as the appellant was not in service during thattime, the learned Single Judge held that he cannot claim promotionon par with his batch-mates and that the appellant is not entitled toclaim promotion as Grade I Police Constable with effect from the year1989. 7. Mr.K.Venkataramani, learned Senior Counsel appearing for theappellant, while assailing the judgment of the learned Judge, wouldsubmit that when once the punishment has been ultimately modified tothat of reduction in time scale of pay by two stages for a period oftwo years with cumulative effect by an order dated 27.9.1994, itshould go back to the original date of dismissal, namely 9.2.1988 and3.3.1988, by which the punishment of dismissal was modified as https://hcservices.ecourts.gov.in/hcservices/ compulsory retirement and after two years from the said date, theappellant should have been given promotion. 8. It is the contention of the learned Senior Counsel for theappellant that the claim of the appellant for promotion as Grade IPolice Constable has been accepted from 1993 onwards andsubsequently, he was made as Head Constable in the year 1999,whereas, by applying the modified punishment, the appellant will beentitled to promotion as Grade I Police Constable from the year 1992and by applying the notional promotion, he will be entitled to oneincrement, particularly in the circumstances that the appellant hasretired from service on 31.11.2006.9. On the other hand, it is the contention of the learnedSpecial Government Pleader that the appellant was out of employmentfrom 13.8.1987 to 24.7.1994 and therefore, he cannot be consideredfor promotion from the year 1993. 10. The learned Special Government Pleader, by placing relianceon the guidelines issued by the Government in respect of preparationof panel for appointment by promotion/recruitment by transfer inletter dated 20.10.1997, especially on the guideline regarding theeffect of punishments on inclusion in the panel, which reads asfollows:"2) Any punishment, other than 'Censure', imposed on anofficer within a period of five years prior to thecrucial date and a punishment of 'Censure' within aperiod of one year prior to the crucial date should beheld against the officer. In such a case the Officer'sname should be passed over.Provided that if the officer was imposed with anyof the punishments within the check period as mentionedabove for irregularities/delinquencies which occurredfive years prior to the date of punishment, suchpunishment need not be held against him.Provided that an Officer passed over once, need notbe passed over for the second time on account of thesame punishment at the time of subsequent considerationfor the next panel.",would contend that after the order passed in appeal on 27.9.1994,during the check period, namely five years prior to the date ofpunishment, the appellant would not be entitled to promotion. Inother words, according to him, the order in the appeal, modifying thepunishment, being on 27.9.1994, that should be taken as a crucialdate and five years prior to the said crucial date there is no needto promote the appellant. https://hcservices.ecourts.gov.in/hcservices/

11. If the said argument is accepted, it is true that theappellant would not be entitled to promotion as Grade I PoliceConstable from the year 1989 till the crucial date, viz., 27.9.1994.But, the fact remains that the appellant has been given promotion asGrade I Police Constable on 20.3.1993. Therefore, it is clear thatthe said guidelines relating to the check period have no applicationon the facts and circumstances of the case, as it is understood bythe respondent himself. It is seen that the appellant was promotedas Grade I Police Constable with effect from 20.3.1993, by an orderdated 25.2.1998. Likewise, he was promoted as Head Constable witheffect from 3.9.1999 and he has filed the Original Application beforethe Tribunal on 5.2.2001.12. It is also relevant to note that when the final authority,namely the respondent, has passed an order on 27.9.1994, modifyingthe dismissal order to that of reduction of time scale of pay by twostages for a period of two years with cumulative effect, it certainlygoes back to the original date of dismissal, which was on 9.2.1988 or3.3.1988, by which it was modified as compulsory retirement. Fromthe said original date of punishment, if reduction of time scale ofpay by two stages for two years is taken into consideration, theappellant may not be entitled to be promoted as Grade I PoliceConstable in the year 1989, but certainly he would be entitled tonotional promotion after the lapse of two years from the date oforiginal punishment. 13. In the present case, the claim of the appellant, assubmitted by the learned Senior Counsel, is that he should be givenpromotion notionally as Grade I Police Constable from the year 1992instead of giving it from the year 1993. This vital aspect, that themodified punishment will be given effect to from the original date ofpunishment, has not been considered by the learned Single Judge. Thelearned Single Judge has proceeded on the pretext that from the dateof dismissal on 9.2.1988 till the appellant was reinstated 25.7.1994,he was out of employment and therefore, the reduction of time scaleof pay by two stages for a period of two years cannot be notionallyfixed, which, in our view, is not the correct legal position. Thelaw is well settled that when once in the disciplinary proceedingsthe ultimate authority passes an order modifying the originalpunishment, certainly the modified punishment goes back to theoriginal date of punishment. In that view of the matter, this writ appeal is allowed and theorder of the learned Single Judge is set aside with a direction tothe respondent to confer the notional promotion to the appellant asGrade I Police Constable from 1992, if he was otherwise not https://hcservices.ecourts.gov.in/hcservices/ disqualified, and also to confer the consequential promotion of HeadConstable accordingly. The respondent shall pass appropriate orders,expeditiously, in any event within eight weeks from the date ofreceipt of a copy of this order. No costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarsasiTo The Commissioner of Police City Police Office, Chennai-600 008.+ 1 c.c. to Mr. T. Ayngaraprabhu, Advocate. S.R.No.19840.+ 1 c.c. to The Government Pleader. S.R.No.20186.W.A.No.673 of 2008VS (CO)GSK 08.05.2009.