Swaminathan v. The Superintendent of Police,Sivaganga District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 18-08-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.391 of 2007(O.A.No.5606 of 2001)Swaminathan.. Petitioner.Versus1.The Superintendent of Police,Sivaganga District.2.The Deputy Inspector General of Police,Ramanathapuram.3.The Inspector General of Police,(Law and Order), South Zone, Madurai-2... Respondents. Prayer: Original Application No.5606 of 2001 filed before the TamilNadu Administrative Tribunal, on abolition, transferred to the fileof this Court and renumbered as Writ Petition No.391 of 2007, seekingfor a writ of Certiorari to call for the records of the respondents 1to 3 in connection with the impugned orders passed in PR.No.97/2000,dated 23.11.2000, C.No.B1/Appeal01/2001, dated 18.1.2001 and CNo.A1/674/2001 PR Review 58/2001, dated 31.5.2001, respectively andquash the same. For Petitioner : Mr.K.Venkatramani Senior Advocate for Mr.R.Dinesh KumarFor Respondents : No AppearanceO R D E RHeard the learned counsel appearing on behalf of the petitioner.There is no appearance on behalf of the respondents.2. The brief facts of the case are as follows:The petitioner had entered the service, as a directly recruitedPolice Constable, on 1.8.1984, in the Ramanathapuram East DistrictArmed Reserve. He was transferred to the Taluk Police in the year,1986. He was promoted as Grade I Police Constable in the year, 1997.On 15.3.2000, the petitioner was working as Grade I Police Constable https://hcservices.ecourts.gov.in/hcservices/ in Thirupachethy Police Station in Sivaganga District. From 15.3.2000to 18.3.2000, the petitioner had gone on casual leave with thepermission of the Inspector of Police. Earlier, on 14.3.2000, he wasdirected to attend Treasury duty at Sivaganga. On 19.3.2000 he couldnot join the duty due to ill health. Therefore, the petitioner hadsubmitted a leave application, along with the medical certificate. Inspite of submitting an application for leave, on medical grounds, thepetitioner was declared as a deserter. Thereafter, the petitioner wasnot taken back on duty. He was served with a charge memo allegingthat he had deserted the force, without leave or permission,continuously, for a period of 21 days, from 15.3.2000, inP.R.No.97/2000. 3. The petitioner had denied the charges alleged against him.However, an enquiry was conducted against the petitioner based on thealleged charges. In spite of the explanation submitted by thepetitioner, along with the medical certificate, the enquiry officerhad held that the charges levelled against the petitioner had beenproved. The enquiry report had been submitted to the disciplinaryauthority. A copy of the enquiry report had been furnished to thepetitioner and he was asked to submit an explanation. However, thedisciplinary authority, without considering the explanation submittedby the petitioner, had imposed the punishment of compulsoryretirement from service, by an order, dated 23.11.2000. 4. Challenging the said order, dated 23.11.2000, passed by thefirst respondent herein, the petitioner had preferred an appeal tothe second respondent. The second respondent had rejected the appealof the petitioner by an order, dated 18.1.2001. Thereafter, thepetitioner had preferred a review to the third respondent. The thirdrespondent had set aside the order of compulsory retirement and hadordered the reinstatement of the petitioner in service. However, hehad modified the order of punishment imposed on him earlier to one ofreduction of his rank, from Grade I to Grade II, by an order, dated31.5.2001, without specifying the period for which the order ofreduction would be in force. 5. The main contention of the learned counsel appearing for thepetitioner is that the punishment of reduction in rank, imposed onthe petitioner, by the order of the third respondent, dated31.5.2001, is not in accordance with the Fundamental Rules of theTamil Nadu Government and therefore, it is liable to be set aside.The third respondent, while imposing the punishment of reduction inrank, ought to have stated the period for which the punishment shallbe effective and as to whether on restoration the period of reductionshall operate to postpone future increments and if so, to whatextent. Rule 29 of the Fundamental Rules reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "29. If a Government servant is reduced as a measureof penalty to a lower service, grade or post or to a lowerstage in his time-scale, the authority ordering suchreduction shall state the period for which it shall beeffective and whether on restoration, the period ofreduction shall operate to postpone future increments andif so, to what extent."6. Further, the `Rulings' in Rule 29 read as follows:"(1)(a) Every order passed by a competent authorityimposing on a Government servant the penalty of reductionto a lower stage in a time scale should indicate-(i) the date from which it will take effect and theperiod (in terms of years and months) for which the penaltyshall be operative;(ii) the stage in the time-scale (in terms of rupees)to which the Government servant is reduced; and(iii) the extent (in terms of years and months), ifany, to which the period referred to at (i) above shouldoperate to postpone future increments.The reduction to a lower stage in a time-scale is notpermissible under the rules either for an unspecifiedperiod or as a permanent measure. Also, when a Governmentservant is reduced to a particular stage, his pay willremain constant at that stage for the entire period ofreduction. The period to be specified under (iii) should inno case exceed the period specified under (i)(b) The question as to what should be the pay of aGovernment servant on the expiry of the period of reductionshould be decided as follows:---(i) If the order of reduction lays down that theperiod of reduction shall not operate to postpone futureincrements, the Government servant should be allowed thepay which he would have drawn in the normal course but forthe reduction. If, however, the pay drawn by himimmediately before reduction was below the efficiency bar,he should not be allowed to cross the bar except inaccordance with the provisions of Fundamental Rule 25.(ii) If the order specifies that the period ofreduction was to operate to postpone future increments forany specified period, the pay of the Government servant https://hcservices.ecourts.gov.in/hcservices/ shall be fixed in accordance with (i) above but fortreating the period for which the increments were to bepostponed as not counting for increment."7. It has also been submitted that the Government of Tamil Naduhad issued a communication, dated 21.5.2002, in LetterNo.26625/F.R.I/2002-1, Personnel and Administrative Reforms (F.R.I)Department, Secretariat, Chennai, to All the Secretaries toGovernment, Heads of Departments, including all District Collectors,District Judges and Chief Judicial Magistrates, which reads asfollows:"In the case filed before the Tamil NaduAdministrative Tribunal, Chennai, it is noticed that whiletaking disciplinary action under the Tamil Nadu CivilServices (Discipline and Appeal) Rules against a GovernmentServant, the authority ordering the punishment has awardedthe punishment of reduction to the substantive post held bythe Government servant permanently. The order waschallenged by the applicant in the Tamil NaduAdministrative Tribunal. The Tamil Nadu AdministrativeTribunal has observed that reversion can be ordered by wayof punishment; if it is made on a permanent measure, itwould amount to double punishment; there is no scope forimposition of such a punishment as per provisions underTamil Nadu Civil Services (Discipline and Appeal) Rulesread with the provisions under F.R.29.2. I am, therefore, to state that if a Governmentservant is reverted as a measure of penalty to a lowerservice, grade or post or to a lower stage in his timescale, the authority ordering such reduction should specifythe period for which the reduction shall be operative asrequired under Rule 29 of F.R. It is to be noted that thereduction to a lower service, grade or post or to a lowerstage in time scale, for any unspecified period or as apermanent measure is not permissible under the relevantRules.3. I am also to request you to ensure that suchmistake does not occur while considering for the impositionof punishment like reduction to a lower rank, stage infuture."In such circumstances, the order passed by the third respondent,dated 31.5.2001, cannot be sustained in the eye of law. 8. Even though the averments and the allegations made by thepetitioner have been denied in the reply filed on behalf of the https://hcservices.ecourts.gov.in/hcservices/ respondents, the specific issue, with regard to Rule 29 of theFundamental Rules of the Tamil Nadu Government, raised by the learnedcounsel for the petitioner has not been dealt with, on merits.However, it has been admitted that, while imposing the punishment ofreduction in rank imposed on the petitioner, the period for which thepunishment would operate has not been mentioned. It has been furtherstated that a lenient punishment has been imposed on the petitionerconsidering various factors, including the past records relating tohis service. As such, the present writ petition is liable to bedismissed, as devoid of merits.9. In view of the submissions made by the learned counselappearing for the petitioner and the averments made on behalf of therespondents and on a perusal of the records available, this Court isof the considered view that, while imposing the punishment ofreduction in rank, by an order passed by the third respondent, dated31.5.2001, the period for which the punishment would be in operationought to have been mentioned, in accordance with Rule 29 of theFundamental Rules of the Tamil Nadu Government. Since the maincontention raised by the learned counsel for the petitioner, withregard to the application of Rule 29 of the Fundamental Rules of theTamil Nadu Government to the present case, has not been met by therespondents, in the reply affidavit filed on their behalf, the orderof the third respondent, dated 31.5.2001, is set aside and the matteris remitted back to the third respondent to pass appropriate orders,on merits and in accordance with law, taking into consideration Rule29 of the Fundamental Rules of the Tamil Nadu Government, the Rulingsthereon and the Letter No.26625/F.R.I/2001-1, dated 21.5.2002, withina period of twelve weeks from the date of receipt of a copy of thisorder. The writ petition is disposed of with the above directions.No costs. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarcshTo1.The Superintendent of Police,Sivaganga District. https://hcservices.ecourts.gov.in/hcservices/

2.The Deputy Inspector General of Police,Ramanathapuram.3.The Inspector General of Police,(Law and Order), South Zone, Madurai-2.+1 cc to M/s.T.Ayngaraprabhu, Advocate, SR.No.40078Writ Petition No.391 of 2007RJ {CO}TP/9.9.2009.