@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashThe Writ Petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of writ of certiorarified mandamus calling for the records pertaining to the third respondent dated 16.12.2005 made in D.O. 20/06, C. No. A1(3)/47724/04, confirmed by the second respondent by order dated 22.03.2006 in C. No. A1(3)/04984 and quash the same, consequently direct the third respondent herein to give effect to the earlier order dated 12.01.2005 made in D.O. 19/05(A1)(3)/47724/04, insofar as it relates to the petitioner is concerned. It is an admitted fact that the petitioner had joined the service as Grade II Constable in the Armed Reserve Force, Cuddalore on 22.01.1986. Pursuant to a complaint given, a case in Crime No. 1091/1987 was registered against the petitioner under Sections 356 and 376 I.P.C. The criminal proceeding was initiated against the petitioner, based on the complaint given by one Selvi Vimala Devi, a Srilankan refugee. In view of the criminal case, departmental proceeding was initiated against the petitioner. Aggrieved by which, the petitioner filed an application in O.A. No. 36 of 1988 before the Tamil Nadu State Administrative Tribunal. The Tribunal after considering the facts and circumstances, granted interim stay and the same was subsequently made absolute on 22.12.1988. In the criminal case, by judgment dated 04.12.1990, the petitioner got honourable acquittal in C.C. No. 143 of 1990 on the file of Additional Sessions Judge, Cuddalore. However, in view of the pendency of the criminal case, the petitioner was suspended from service, while the departmental proceeding was pending.
2. It was argued by the learned counsel for the petitioner that the petitioner was honourable acquitted by the Additional Sessions Court, Cuddalore, however, without providing reasonable opportunity to the petitioner, he was dismissed from service by the respondents against law. Aggrieved by the order, the petitioner preferred an Appeal before the Deputy Inspector General of Police, the second respondent herein, however, the second respondent herein has not decided the same on merits, but simply dismissed the appeal by his order dated 28.01.1992. Hence, the petitioner preferred a Review Petition before the Inspector General of Police, the first respondent herein. However, the Review Petition was also dismissed by the first respondent, hence, the petitioner approached the Tamil Nadu State Administrative Tribunal by way of filing an Application in O.A. No. 1428 of 1993, challenging the order of dismissal, as illegal. The State Administrative Tribunal by its order dated 24.03.1995 held that the order passed by the first respondent, is not legally sustainable and accordingly set aside the order passed by the respondents whereby directed the respondents to re instate the petitioner with continuity of service but without back wages for the period he had not worked.
3. It was made clear in the order passed by the Tamil Nadu State Administrative Tribunal that the said period of suspension shall be taken into account for continuity of service and other benefits except back wages and the respondents herein were directed to implement the order within a period of two months from the date of receipt of a copy of the said order.
4. Mrs. A.L. Ganthimathi, learned counsel appearing for the petitioner submitted that the petitioner herein has got honourable acquittal by the Additional Sessions Court, Cuddalore in the case in S.C. No. 143 of 1990. However, he was dismissed from service by the third respondent and that was confirmed by the second respondent and that the Review Petition filed by the petitioner was also dismissed by the first respondent herein. As per the order passed in O.A. No. 1428 of 1993 by the State Administrative Tribunal, the petitioner was directed to be re instated in service and the Tribunal held that he is entitled to continuity of service, except back wages. Accordingly, the petitioner was re instated, given upgradation as Grade I Police Constable with effect from 22.07.1997 and he was also made Head Constable by way of subsequent promotion on 22.07.2002. However, by the impugned order passed by the third respondent, the upgradation of the petitioner as Head Constable with effect from 22.07.2002 in D.O. 19/05(A1)(3)/47724/04 dated 12.01.2005, was subsequently cancelled by the impugned order. As per the impugned order, it was informed that the date of up gradation of the petitioner as Grade I Police Constable was only with effect from 07.09.2004. Learned counsel for the petitioner submitted that the respondents cannot give a go by to the directions given by the State Administrative Tribunal, as it has reached its finality and there was no other efficacious alternative relief available to the petitioner, except to file this writ petition, seeking the relief. Hence, the petitioner has filed this writ petition.
5. Per contra, learned Additional Government Pleader appearing for respondents submitted that the petitioner is not entitled to get promotion, continuity of service or any monetary benefit for the period, he was not in service either under suspension or dismissal, hence, the impugned order dated 16.12.2005, was passed by the Superintendent of Police, Villupuram, the third respondent herein, whereby the earlier order was cancelled.
6. Learned counsel for the petitioner argued that the impugned order is not legally sustainable. In support of her contention, the learned counsel appearing for the petitioner relied on the following decisions rendered by the Hon''ble Supreme Court and this Court:
1.
2.
3. Unreported decision of this Court dated 21.09.2010 made in W.P. No. 48009 of 2006 (R. Sengodan v. The Superintendent of Police, Namakkal).
7. In
21. Besides the submission that a person on illegal strike does not abandon his job is erroneous. An illegal "strike" cannot by definition be "authorised absence". It would be a contradiction in terms. We may also draw support from Section 25-B which defines "continuous service" as "uninterrupted service, including service which may be interrupted on account of sickness or authorised leave or an accident or a strike which is not illegal, or a lockout or a cessation of work which is not due to any fault on the part of the workman."
8. In
It cannot legitimately be contended that the word "continuously" has one definite meaning only to convey uninterruptedness in time sequence or essence and on the other hand the very word would also mean "recurring at repeated intervals so as to be of repeated occurrence". That apart, used as an adjective it draws colour from the context too, and in the light of the texture of clause 11 as well as clause 12 and clause 23(b) and also Section 22-B of the 1948 Act and orders passed therein which are binding with equal force upon both the consumer and the Board, the word is incapable of being construed in such absolute terms.
9. Relying on various decisions, this Court (D. Hariparanthaman, J.) in R. Sengodan v. The Superintendent of Police, Namakkal in W.P. No. 48009 of 2006 dated 21.09.2010 has taken a view that a person who was facing prosecution of a criminal case suspended from 18.01.1991 to 12.05.1996, in view of an honourable acquittal recorded subsequently in the criminal case was entitled to get continuity of service. Accordingly, as per Rule 9 of the Fundamental Rules, the petitioner therein was entitled to get regularisation for the period of suspension, in view of the order for his continuity of service.
10. The interpretation given for ''continuous service'' in the Law Lexicon by P. Ramanatha Aiyar''s, at page 341, reads as follows:
Continuous service - Counting back from the date of termination of the service, if a person had rendered service for a period of 240 days within a period of 12 months he will be deemed to be in continuous service for a period of one year.
''Continuous service'' in the context of the scheme of gratuity framed by the Tribunal postulates the continuance of the relationship of master and servant between the employer and his employees. When a servant resigns or when the employer terminates the services of the employee or when the service of an employee is brought to an end by the operation of any law, the continuance of service is disrupted.
11. It cannot be disputed that this case is similar to the facts and circumstances as that of the case relating to the said decisions referred to above. In the instant case, the State Administrative Tribunal by order dated 24.03.1995, has set aside the impugned orders passed by the respondents and directed the respondents to re instate the petitioner with continuity of service and also held that the petitioner was entitled to all other benefits, except back wages. Admittedly the order passed by the State Administrative Tribunal has reached its finality.
12. Hence, in this writ petition, this Court has to consider and interpret the term continuity of service. The term continuity of service, as per Rule 9 of the Fundamental Rules 54-B, reads as follows:
54-B1.(1) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation or compulsory retirement while under suspension, the authority competent to order reinstatement shall consider and make a specific order-
(a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation or compulsory retirement, as the case may be; and
(b) whether or not the said period shall be treated as a period spent on duty.
(2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or the court proceedings instituted against him are concluded, the period between the date of suspension and the date of death, shall be treated as duty for all purposes and his family shall be paid the fully pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid.
(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended:
Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reason directly attributable to the Government servant, it may, after giving him an opportunity to make his representation (within sixty days from the date on which the communication in this regard is served on him) and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine.
(4) In a case falling under sub-rule (3), the period of suspension shall be treated as a period spent on duty for all purposes.
(5) In cases other than those falling under sub-rules (2) and (3), the Government servant shall, subject to the provisions of sub-rules (8) and (9) be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection, within such period which, in no case shall exceed sixty days from the date on which the notice has been served, as may be specified in the notice.
(6) Where suspension is revoked pending finalisation of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1), who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be.
(7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Government servant so desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant.
(8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances are admissible.
(9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowance and other allowances admissible under Rule 53.
2. The grant of pay and allowances or a proportion of them under Rule 54 or 54-A or 54-B does not cancel any officiating arrangements that may have been in force while the Government servant was under suspension or dismissal or removal or compulsory retirement.
3. In deciding whether any pay and allowances should be granted under Rule 54 or 54-A or 54-B to a Government servant in temporary employment, the period for which the temporary post has been sanctioned should be taken into consideration.
(1) The cases of suspension during pendency of criminal proceedings or proceeding for arrest for debt or during detention under a law providing for preventive detention, shall be dealt within the following manner hereafter:--
(a) A Government servant who is detained in custody under any law providing for preventive detention or as a result of a proceeding either on a criminal charge or for his arrest for debt shall, if the period of detention exceeds 48 hours and unless he is already under suspension, be deemed to be under suspension, from the date of detention until further order as contemplated in the Tamil Nadu Civil Services (Discipline and Appeal) Rules. A Government servant who is undergoing a sentence of imprisonment shall also be dealt within the same manner pending a decision on the disciplinary action to be taken against him;
(b) A Government servant against whom a proceeding has been taken on a criminal charge but who is not actually detained in custody (e.g. a person released on bail) may be placed under suspension by an order of the competent authority under the Tamil Nadu Civil Services (Discipline and Appeal) Rules. If the charge is connected with the official position of the Government servant or involving any moral turpitude on his part, suspension shall be ordered under this rule unless there are exceptional reasons for not adopting this course;
(c) A Government servant against whom a proceeding has been taken for his arrest for debt but who is not actually detained in custody may be placed under suspension by an order under the Tamil Nadu Civil Services (Discipline and Appeal) Rules, i.e. only if a disciplinary proceeding against him is contemplated;
(d) When a Government servant who is deemed to be under suspension in the circumstances mentioned in clause (a) or who is suspended in the circumstances mentioned in clause (b) is reinstated without taking disciplinary proceedings against him, his pay and allowance for the period of suspension will be regulated under Rule 54/54-B, i.e. in the event of his being acquitted of blame or if the proceeding taken against him was for his arrest for debt or its being proved that his liability arose from circumstance beyond his control or the detention being held by any competent authority to be wholly unjustified, the case may be dealt with under Rule 54(2)/54-B(3); otherwise it may be dealt with under Rule 54(4)/54-B (5).
4. The headquarters of a Government servant under suspension is his last place or duty. A Government servant under suspension may change his headquarters provided the competent authority who has placed him under suspension is satisfied that such a course will not put Government to any extra expenditure like grant of travelling allowance.
5. A permanent post vacated by the dismissal, removal or compulsory retirement of a Government servant should not be filled substantively until the expiry of the period of one year from the date of such dismissal, removal or compulsory retirement as the case may be. Where, on the expiry of the period of one year, the permanent post is filled and the original incumbent of the post is reinstated thereafter, he should be accommodated against any post which may be substantively vacant in the grade to which his previous substantive post belonged. If there is no such vacant post he should be accommodated against a supernumerary post which should be created in this grade with proper sanction and with the stipulation that it would be terminated on the occurrence of the first substantive vacancy in that grade.
13. It is an admitted fact that the petitioner was re instated in service, in view of the criminal case ended in honourable acquittal. The Hon''ble Supreme Court in Paul Antony''s case (1999 Lab IC 1565), that in case of honourable acquittal, it has to be legally presumed that he had been in service for all purposes, even during the period of suspension, the employee is entitled to continuity of service except back wages. It is seen that as per the earlier order dated 12.01.2005 in D.O. 19/05 (A1)(3)/47724/04, the petitioner was properly promoted to the post of Head Constable with effect from 22.07.2002, having been regularised in the cadre of Grade I Constable with effect from 22.01.1997 in the service. When there is no offence made out against the accused or he is acquitted not by providing benefit of doubt, it could be construed as honourable acquittal and there could be no stigma attached to the accused.
14. However, by the impugned order dated 16.12.2005, confirmed by order dated 22.03.2006, the third respondent has cancelled the promotion of the petitioner as Head Constable with effect from 22.07.2002, which is erroneous and unsustainable, in view of the decision rendered by the Hon''ble Supreme Court. As per the order passed by the State Administrative Tribunal, it has been made clear that the petitioner is entitled to continuity of service and all other benefits except back wages, since the criminal case was ended in honourable acquittal. On the aforesaid circumstances, the petitioner having been promoted as Head Constable with effect from 22.07.2002, cannot be reverted back by way of the cancellation order. The third respondent cannot cancel the promotion already given on par with the petitioners juniors, arbitrarily, without following the mandatory procedures and further the order passed by the State Administrative Tribunal, has reached finality and that was not challenged by the respondents herein. On the aforesaid circumstances, it is quite clear that the impugned order subsequently passed by the respondents is against law, unsustainable and non est in the eye of law. Therefore, I find it just and reasonable to allow the writ petition. Accordingly, the writ petition is allowed and the impugned order dated 16.12.2005 made in D.O. 20/06, C. No. A1(3)/47724/04, confirmed by order dated 22.03.2006 in C. No. A1(3)/04984, is set aside and the respondents are directed to give effect to the earlier order dated 12.01.2005 made in D.O. 19/05(A1)(3)/47724/04, within a period of eight weeks from the date of receipt of a copy of this order. No order as to costs. Consequently, connected M.Ps. are closed.
