R.K. Palani v. The Superintendent of Police, Kancheepuram & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 06.08.2008CoramThe Honourable Mr. Justice P.K. MISRAandThe Honourable Mr. Justice K. KANNANW.P. No.29520 of 2007andM.P. No.2 of 2007R.K. Palani... Petitioner..vs..1. The Superintendent of Police, Kancheepuram.2. The Deputy Inspector General, Chennai Range.... RespondentsPetition filed under Article 226 of the Constitution of India,praying to issue a writ of certiorarified mandamus, to call for therecords pertaining to the order passed by the Tamil NaduAdministrative Tribunal (now Abolished) in O.A. No.8793 of 1998dated 26.4.2004, quash the same in respect of non mentioning ofeffect of modified punishment and consequently specify the date ofcommencement of the modified punishment from the actual date ofpunishment (i.e. 14.10.1998), instead of date of order (i.e.26.4.2004) and further direct the respondents to confer allconsequential benefits including promotion to the post of SubInspector of Police on par with his junior. For Petitioner : Mr. M. Hidayathulla KhanFor Respondents: Mrs. Geetha Thamaraiselvan, Govt. AdvocateO R D E R(Order of the Court was made by P.K. MISRA, J.)Heard Mr. M. Hidayathulla Khan, learned counsel appearingfor the petitioner and learned Government Advocate appearing forthe respondents. https://hcservices.ecourts.gov.in/hcservices/

2. The petitioner, at the time when disciplinaryproceedings were initiated, was functioning as Head Constable. Inthe disciplinary proceedings, the department had imposed thepunishment of dismissal from service by an order dated 14.10.1998.Such order came to be challenged at the instance of the petitionerin O.A. No.8793 of 1998. The Tribunal, while basically agreed withthe findings regarding mis-conduct of the delinquent, observed asfollows:- "14. ............ So evidence has clearlyestablished that these applicants have notperformed the duties assigned to them in a propermanner and they have allowed the prisoners to betaken out to place which was not in theiritinerary. Any how it is proved by the evidenceof P.W.7 that the applicant has betrayed thetrust imposed on them and they have misused theirposition and they have taken out the prisonersthat the prisoners were taken out by theseapplicants to commit robbery or they had any partto play in the actual robbery. The fact that arobbery took place in the shed is admitted byother witnesses but identity of participants havenot been proved. The fact that the applicantshave allowed the prisoner to leave the place forabout 7 minutes is proved and this act is misusedof their position and abuse of the authority.The punishment of dismissal has been imposed bythe Superintendent of Police stating that theyhave also participated in the act of robbery forwhich there is absolutely no evidence. Evidenceis available only to the limited extent that theapplicants have abused their position as escortconstables and have taken away the prisoners forabout 7 minutes unauthorisedly.15. For this act of misconduct properpunishment will be postponement of increment for5 years with cumulative effect. For the limitedperiod when they were out of employment, the arenot entitled to any wages. The punishment ofdismissal is modified to this extent and theapplications are ordered in the terms."3. After such order was passed by the Tribunal, theDepartment passed a further order dated 20th July, 2004, wherein theDepartment indicates that the punishment of postponement ofincrement would commence from the date of such order andaccordingly, such order was implemented by the Department.Thereafter, the seniority list of the Head Constable was drawn upon 21.6.2007. https://hcservices.ecourts.gov.in/hcservices/

4. Thereafter, the petitioner has filed this writpetition, seeking to issue a writ of certiorarified mandamus, tocall for the records pertaining to the order passed by the TamilNadu Administrative Tribunal (now Abolished) in O.A. No.8793 of1998 dated 26.4.2004, quash the same in respect of non mentioningof effect of modified punishment and consequently specify the dateof commencement of the modified punishment from the actual date ofpunishment (i.e. 14.10.1998), instead of date of order (i.e.26.4.2004) and further direct the respondents to confer allconsequential benefits including promotion to the post of SubInspector of Police on par with his junior. 5. It is to be noted that the petitioner has notchallenged the order dated 20th July, 2004 nor the petitioner haschallenged the seniority list of the Head Constables. The solecontention of the petitioner is to the effect that once the orderof dismissal was modified and a lesser punishment of postponementof five increments with cumulative effect was passed by theTribunal, it must be taken that such punishment substitutes theoriginal punishment of dismissal with effect from 14.10.1998.Therefore, it should be taken that the postponement of incrementshall be deemed to have been effected from 14.10.1999 to14.10.2003. The contention raised by the learned counsel for thepetitioner is that since the currency of the punishment is deemedto be over on 14.10.2003, the case of the petitioner should havebeen considered for promotion thereafter.6. Learned counsel appearing for the Department on theother hand submitted that even though the order of dismissal hadbeen modified, the Tribunal had not directed that the person wasentitled for all consequential service benefits includingcontinuity of service. Therefore, it cannot be assumed that theperson had been reinstated in service with all consequentialbenefits with effect from the original date of punishment ofdismissal. 7. Learned counsel appearing for the respondents hasplaced reliance upon the decision reported in the case of J.K.SYNTHETICS LIMITED v. K.P. AGRAWAL ((2007) 2 SUPREME COURT CASES433), wherein, after referring to all the decisions on the point,the Supreme Court observed as follows:-"17. There is also a misconception thatwhenever reinstatement is directed, "continuityof service" and "consequential benefits" shouldfollow, as a matter of course. The disastrouseffect of granting several promotions as a"consequential benefit" to a person who has notworked for 10 to 15 years and who does not havethe benefit of necessary experience fordischarging the higher duties and functions of https://hcservices.ecourts.gov.in/hcservices/ promotional posts, is seldom visualised whilegranting consequential benefits automatically.Whenever courts or tribunals directreinstatement, they should apply their judicialmind to the facts and circumstances to decidewhether "continuity of service" and/or"consequential benefits" should also be directed.We may in this behalf refer to the decisions ofthis Court in A.P. SRTC v. S. Narsagoud ((2003) 2SCC 212 : 2003 SCC (L&S) 161), A.P. SRTC v. AbdulKareem ((2005) 6 SCC 36 : 2005 SCC (L&S) 790) andRajasthan SRTC V. Shyam Bihari Lal Gupta ((2005)7 SCC 406 : 2006 SCC (L&S) 67).19. But the cases referred to above, whereback wages were awarded, related totermination/retrenchment which were held to beillegal and invalid for non-compliance withstatutory requirements or related to cases wherethe Court found that the termination wasmotivated or amounted to victimisation. Thedecisions relating to back wages payable onillegal retrenchment or termination may have noapplication to the case like the present one,where the termination (dismissal or removal orcompulsory retirement) is by way of punishmentfor misconduct in a departmental inquiry, and thecourt confirms the finding regarding misconduct,but only interferes with the punishment being ofthe view that it is excessive, and awards alesser punishment, resulting in the reinstatementof employee. Where the power under Article 226 orSection 11-A of the Industrial Disputes Act (orany other similar provision) is exercised by anycourt to interfere with the punishment on theground that it is excessive and the employeedeserves a lesser punishment, and a consequentialdirection is issued for reinstatement, the courtis not holding that the employer was in the wrongor that the dismissal was illegal and invalid.The court is merely exercising its discretion toaward a lesser punishment. Till such power isexercised, the dismissal is valid and in force.When the punishment is reduced by a court asbeing excessive, there can be either a directionfor reinstatement or a direction for a nominallump sum compensation. And if reinstatement isdirected, it can be effective eitherprospectively from the date of such substitutionof punishment (in which event, there is nocontinuity of service) or retrospectively, fromthe date on which the penalty of termination was https://hcservices.ecourts.gov.in/hcservices/ imposed (in which event, there can be aconsequential direction relating to continuity ofservice). What requires to be noted in caseswhere finding of misconduct is affirmed and onlythe punishment is interfered with (as contrastedfrom cases where termination is held to beillegal or void) is that there is no automaticreinstatement; and if reinstatement is directed,it is not automatically with retrospective effectfrom the date of termination. Therefore, wherereinstatement is a consequence of imposition of alesser punishment, neither back wages norcontinuity of service nor consequential benefits,follow as a natural or necessary consequence ofsuch reinstatement. In cases where the misconductis held to be proved, and reinstatement is itselfa consequential benefit arising from impositionof a lesser punishment, award of back wages forthe period when the employee has not worked, mayamount to rewarding the delinquent employee andpunishing the employer for taking action for themisconduct committed by the employee. That shouldbe avoided. Similarly, in such cases, even wherecontinuity of service is directed, it should onlybe for purposes of pensionary/retirementbenefits, and not for other benefits likeincrements, promotions, etc."8. In order to appreciate the contention of the rivalparties, it is also necessary to note another factor. When theorder of dismissal was challenged by the petitioner by filingOriginal Application, surprisingly, an order of stay was grantedand the Department, at that stage, allowed the petitioner tofunction as Head Constable. We are also told that during the saidtime, the petitioner was in fact paid his regular salary along withthe increment from year to year. 9. In this background, the question now to be examined isas to whether the punishment of postponement of increment should bedeemed to have been commenced with effect from 14.10.1998 or fromthe date of the subsequent order passed by the Department,apparently, implementing the order of the Tribunal, is to beupheld. It is also to be noted that it was open to the petitionerto specifically challenge the subsequent order dated 20th July,2004. 10. Be that as it may, the filing of present writpetition can be construed as indirectly seeking direction againstsuch order dated 20th July, 2004. It is no doubt true that it wasopen to the Tribunal to give a specific direction at that stage asto whether the person was deemed to have been reinstated with allattendant benefits and possibly, the Tribunal could have stated https://hcservices.ecourts.gov.in/hcservices/ that the postponement of increment would be with effect from14.10.1998. On the other hand, we find that the Tribunal, in itsorder, has stated in paragraph 15 that the proper punishment willbe postponement of increment for five years with cumulative effect.This direction rather gives the impression that the Tribunalintended that postponement of increment would be only after theactual reinstatement of the person in service not from aretrospective date.11. Apart from the above, from the decision of theSupreme Court cited supra, it is apparent that there is noautomatic reinstatement in service with all attendant consequentialbenefits. In the present case, the Tribunal has in fact found thatthere was gross dereliction of duty on the part of the petitioner.However, the Tribunal, in its wisdom, interfered with thepunishment and such order became final in the sense that the StateGovernment has not chosen to challenge such order. If thecontention of the petitioner would now be accepted, it would resultin a person belonging to a disciplined force is found guilty ofgross dereliction of duty, which resulted in three personscommitting grievous offence of robbery taking advantage of laxityof police, being rewarded for his gross negligence of duty.12. In this only context, the Supreme Court has held thatthere should not be automatic reinstatement of a person, who wasfound guilty by the departmental Authorities. 13. Learned counsel appearing for the petitioner hassubmitted that if the stoppage of increment takes effect as perthe subsequent order passed by the Department, the delinquent wouldbe suffering two punishments. Such contention, in our opinion,though prima facie attractive, it is not acceptable.14. First of all, we have already noticed that thepetitioner was in fact paid the regular increment during the periodhe served by virtue of the interim order. Therefore, it is nottrue that postponement of increment for ten years has resulted.The postponement of increment is only for five years. 15. So far as the question of promotion is concerned, thepetitioner cannot ask for the same as a matter of right.Obviously, while the dismissal order was still in force, eventhough it was stayed, the petitioner should not have beenconsidered for promotion, since the postponement of increment is ineffect from 20th July, 2004. Obviously, the petitioner cannot beconsidered for promotion during the currency of such punishment.Law is well settled that if the person is not promoted because ofpunishment by the departmental proceedings, the denial of suchpromotion cannot be held as second punishment. https://hcservices.ecourts.gov.in/hcservices/

16. In the above view of the matter, we do not find anymerit in the writ petition and the same is dismissed.Consequently, the connected M.P. is also dismissed. No costs.ssa. Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To1. The Superintendent of Police, Kancheepuram.2. The Deputy Inspector General of Police, Chennai Range.1 cc to Mr.M.Hidayathulla Khan, Advocate, SR.430091 cc to the Government Pleader, SR.43412gr (co)dv/8.9.W.P No.29520 of 2007 andconnected M.P.No.2 of 2007