S.Balasubramanian v. The Director General of PoliceChennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 05..11..2007Coram: The Hon'ble Mr. Justice K.CHANDRUW.P. No. 42971 of 2006andM.P. No. 1 of 2006S.Balasubramanian..Petitioner Vs.

The Director General of PoliceChennai - 42. The Superintendent of PoliceTirunelveli District 3. The Deputy Inspector General of PoliceTirunelveli RangeTirunelveli.. Respondents Petition filed for issuance of writ of Certiorarified Mandamuscalling for the records pertaining to the order of the firstrespondent in Rc. No. PR.II(1)/027215/2004 dated 31.7.2004 andthe second respondent in D.O. 607/04 C. No. P3/OA.368/96 dated19.8.2004 and Na. Ka. No. F1/BN/65/2004 dated 11.8.2006 and quashthe same and direct the respondents to reinstate the petitionerin service with all consequential benefits including service, monetary benefits. For Petitioner: Mr. M.S. SoundararajanFor Respondent : Mrs. Bhavani Subbarayan, AGPORDERThe petitioner challenges the order of the first respondentdated 31.7.2004 imposing the punishment of compulsory retirement, which was communicated by an order dated 19.8.2004, as well asthe recovery order dated 11.8.2006.

I have heard the arguments of Mr. M.S. Soundararajan, learned counsel appearing for the petitioner and Mrs. BhavaniSubbarayan, learned Assistant Government Pleader representing therespondents and have perused the records. https://hcservices.ecourts.gov.in/hcservices/

The petitioner was charge-sheeted under Rule 3(b) ofthe Tamil Nadu Police Subordinate Service (Discipline and Appeal)Rules. The charge against the petitioner was that he hadintimidated and intruded into the privacy of oneSanthanamariammal, wife of Shanmugam, another Police Constable at5.30 pm on 18.6.1983 and in furtherance of the object ofintimidation and intrusion, visited the line hut 18 K Blockbetween 9 and 10 pm clandestinely and skulked away. Subsequently, after conducting an enquiry, the petitioner wasgiven punishment of reduction in time scale of pay for a periodof two years with cumulative effect by an order dated 27.12.1984.The petitioner challenged the same by way of appeal dated29.02.1985. But, however, the third respondent Deputy InspectorGeneral of Police issued a suo motu revision order as to why thepenalty should not be enhanced to that dismissal and accordingly, he was dismissed from service vide order dated 12.9.1985. Thepetitioner preferred a Review Petition before the InspectorGeneral of Police and the penalty was set aside and thepetitioner asked to show cause as to why he should not bedismissed from service by a notice dated 11.12.1996.Subsequently, after getting his explanation, he was dismissedfrom service on 04.3.1987.

As against the order of dismissal, the petitionermoved the Tamil Nadu Administrative Tribunal by filing an Original Application being O.A. No. 2754 of 1990 and the saidO.A. was allowed by an order dated 06.3.1992 with a direction tothe respondents to review the matter. The respondents' attemptto move the Supreme Court had also failed and the S.L.P. wasdismissed on 09.5.1995. Thereafter, a show cause notice dated06.11.1995 was given to the petitioner to submit his explanation. The petitioner, after submitting an explanation, also filedanother Original Application before the Tribunal being O.A. No.368 of 1996 challenging the show cause notice. The Tribunal, byan order dated 30.3.2004, directed the respondents to take alenient view on the matter. Pursuant to the order of the Tribunal, the petitioner sent a representation dated 29.6.2004 tothe first respondent. The first respondent rejected hisrepresentation but, however, imposed a penalty of compulsoryretirement vide order dated 31.7.2004. The second respondent, while giving effect to the said order, directed that thecompulsory retirement should take effect from the original dateof punishment of dismissal, viz., 23.9.1985 and, therefore, he isdeemed to have been retired with effect from 23.9.1985. Inthe light of the order dated 19.8.2004 treating the petitioner ashaving retired from 23.9.1985, by a further order dated11.8.2006, the subsistence allowance paid to the petitioner from23.9.1985 to 31.7.2004 was directed to be recovered from thepetitioner. It is this order that is under challenge in thiswrit petition. https://hcservices.ecourts.gov.in/hcservices/

For the nature of misconduct alleged against thepetitioner, there is no case warranting giving a lesserpunishment. Even the punishment of compulsory retirement wasmade only taking a leniency on the misconduct committed by thepetitioner. The misconduct alleged against the petitioner wasthat he outraged the modesty of one woman, viz.,Santhanamariammal, in the absence of her husband. There is apower under Rule 15 A of the Tamil Nadu Police SubordinateService (Discipline and Appeal) Rules to revise any punishmentwithout any time limit. Therefore, the challenge to theimposition of punishment made in the writ petition cannot beentertained and the writ petition is devoid of merits.

However, consequent to the imposition of compulsoryretirement, which is invoked as a punishment, it is not open tothe petitioner to pass the said order with retrospective effect, viz., with effect from 23.9.1985. In fact, originally thepetitioner was imposed with the punishment of reduction in scaleof pay. But when it is sought to be revised by invokingrevisional powers, there is no impediment for the respondent topass an order of compulsory retirement from service. In fact, the order dated 31.7.2004 passed by the first respondent merelyimposes the punishment of compulsory retirement without anyretrospective effect. But, it is the second respondent, whohas modified the punishment to have retrospective effect from23.9.1985. Even if such an order is held to be valid, there isno question of recovery of the Subsistence Allowance paid to thepetitioner from 23.9.1985 till 31.7.2004. The SubsistenceAllowance is paid in terms of Fundamental Rules. It is to keepthe Government employee alive so that he can defend theproceedings effectively. Such an amount, being paid by way of Subsistence Allowance, cannot be recovered merely because thepunishment of compulsory retirement was passed retrospectively. There is no rule which provides recovery of the SubsistenceAllowance paid to a Government servant.

In view of the above, the impugned order dated11.8.2006 ordering recovery of a sum of Rs.1,09,918/- from thepetitioner is hereby set aside. The respondents are directedto forbear from recovering the said amount from the petitioner. If the amounts are already recovered from the terminal benefitspayable to the petitioner, the respondents are directed to refundthe same to the petitioner within a period of four weeks from thedate of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/