Madras High Court
K.Ramadoss vs The Government Of Tamil Nadu on 2 December, 2016
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 17.10.2016 Date of Verdict : 02.12.2016 CORAM THE HON'BLE MR. JUSTICE R.SURESH KUMAR W.P.No.34673 of 2005 K.Ramadoss ...Petitioner Vs. The Government of Tamil Nadu Rep. by the Secretary to Government, Home (Police 1A) Department, Fort St. George, Chennai 600 009. ...Respondent Prayer:- Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus to call for the records of the respondent relating to order in (1) Letter No.36317/Pol.1A/2004-3, Home (Pol.1A) Department, dated 30.04.2004 and (2) Lr.No.70551/Pol.1A/2004-1, Home (Pol.1A) Department dated 04.08.2004, quash the same and issue consequential directions to the respondent to include the same of the petitioner in the panel of Additional Superintendent of Police, fit for promotion as Superintendent of Police for the year 1991-1992, approved in G.O.Ms.No.588, Home (Services B) Department, dated 03.04.1992, below Thiru.R.Shshadri (Sl.No.6) and above Thiru.R.Balasubramanian (Sl.No.7) and consequently grant him notional promotion to the petitioner as Superintendent of Police with retrospective effect from the date of Promotion of his Junior, Thiru.R.Balasubramanian, with consequential benefits, including higher pensionary benefits. For Petitioner : Mr.M.Ravi For Respondent : Mr.P.Sanjay Gandhi Additional Government Pleader O R D E R
The prayer in the writ petition is to call for the records of the respondent relating to order in (1) Letter No.36317/Pol.1A/2004-3, Home (Pol.1A) Department, dated 30.04.2004 and (2) Lr.No.70551/Pol.1A/2004-1, Home (Pol.1A) Department dated 04.08.2004, quash the same and issue consequential directions to the respondent to include the name of the petitioner in the panel of Additional Superintendent of Police, fit for promotion as Superintendent of Police for the year 1991-1992, approved in G.O.Ms.No.588, Home (Services B) Department, dated 03.04.1992, below Thiru.R.Shshadri (Sl.No.6) and above Thiru.R.Balasubramanian (Sl.No.7) and consequently grant notional promotion to the petitioner as Superintendent of Police with retrospective effect from the date of Promotion of his Junior, Thiru.R.Balasubramanian, with consequential benefits, including higher pensionary benefits.
2. The petitioner joined in the police service as Sub Inspector of Police on 05.06.1958 and subsequently he was promoted as Inspector of Police on 08.02.1971. Thereafter, he was further promoted as Deputy Superintendent of Police on 18.02.1983 and thereafter as Additional Superintendent of Police on 09.12.1987. During his service, he had received six meritorious service entries and 300 good service entries and many cash rewards. He also earned one commendation letter from the Inspector General of Police, Vigilance, TNEB and three appreciation letters from the District Collector, Dindigul District. During the year 1975, the petitioner was awarded Tamil Nadu Chief Minister's Police Medal and cash award for continuous meritorious service. During the Independence Day Celebrations in 1987, the petitioner was awarded President's Police medal for his continuous meritorious service. Based on his meritorious service and seniority, he would be eligible to be promoted as Superintendent of Police for the year 1991-92.
3. While the petitioner was working as Additional Superintendent of Police, Prohibition and Enforcement Wing, Salem, he was implicated in a criminal case by the Vigilance and Anti-Corruption unit, Salem and in connection with that, the petitioner was placed under suspension on 19.01.1991. Thereafter, subsequently by G.O.(3D)No.96, Home (SC) Department, dated 25.10.1993, his suspension was revoked and he was reinstated in service, based on the order of the Tamil Nadu Administrative Tribunal, dated 19.09.1993 and the petitioner joined duty on 04.11.1993. However, again, the petitioner was placed under suspension in and by G.O.(3D).No.106, Home (SC) Department, dated 17.11.2013 and thereafter, by further Government order in G.O.(3D).No.1718, Home (SC) Department, dated 30.11.1993, he was not allowed to retire from service on attaining the age of superannuation on 30.11.1993. The reason for being not allowed to retire is the pendency of the criminal case.
4. Thereafter, the criminal case in S.C.C.No.152 of 1990 on the file of the First Additional District Judge-cum-Chief Judicial Magistrate, Salem ended in conviction and the petitioner was sentenced to undergo rigorous imprisonment for one year for each of the offences and to pay a fine of Rs.2,000/- each, in default, to undergo rigorous imprisonment for two months and the said judgment was delivered on 07.05.1999. Even though subsequently, the petitioner preferred criminal appeal against the punishment in Crl.A.No.444 of 1999 on the file of this Court, the petitioner was dismissed from service in and by G.O.Ms.No.84, Home (SC) Department, dated 05.02.2001, in view of the conviction in the criminal case in S.C.C.No.152 of 1990 .
5. Thereafter, the said criminal appeal in Crl.A.No.444 of 1999 was disposed along with the connected criminal appeals by a common judgment dated 30.04.2002, wherein the appeal of the petitioner was allowed and the petitioner was acquitted from the charges. Consequently, on acquittal of the petitioner, the respondent by G.O.Ms.No. 634, Home (Pol.1A) Department, dated 29.07.2003, set aside the order of dismissal passed in G.O.Ms.No.84, Home (SC) dated 05.02.2001 and ordered that the petitioner shall be deemed to have retired from service on 30.11.1993. Consequently, the respondent by further G.O.Ms.No.667, Home (Police 1A) Department, dated 07.08.2003, directed the Director General of Police to settle the pensionary and other retirement benefits to the petitioner. The suspension periods from 19.01.1991 to 03.11.1993 and from 21.11.1993 to 30.11.1993 were ordered to be regulated as 'duty' under F.R.54(3). In and by G.O.Ms.No.453, Home (Police 1A) Department dated 17.03.2004, the Director General of Police was directed to draw and disburse the pay and allowances to the petitioner for the said period of suspension, of course, after deducting the subsistence allowances paid to him.
6. Under the said circumstances, the petitioner had approached the respondent for considering his candidature for notional promotion from the date on which his junior was promoted as Superintendent of Police, as the criminal case ended in acquittal and the petitioner was acquitted of all charges. Further case of the petitioner is that as per G.O.Ms. No.368, P&AR. Department dated 18.10.1993, suo motu action should have been taken by the Head of the Department by giving promotion to the incumbent who had been either reinstated or promoted consequent upon the acquital from the criminal case, with retrospective effect from the date of promotion of his immediate junior or including his name in the panel for promotion. In this regard, the petitioner had submitted a representation dated 21.01.2004 to the respondent. However, the respondent, by order dated 30.04.2004, by stating the reasons given by this Court by way of observations in the order of acquittal dated 30.04.2002, had rejected the claim of the petitioner for granting of promotion as Superintendent of Police with all service benefits. The relevant portion of the order, as has been quoted by the respondent from the judgment of this Court dated 30.04.2002 reads thus :
37. I am told that some of the appellants retired from service and some of the appellants were dismissed from service. In so far as the acquitted appellants who were dismissed from service, the acquittal was recorded only by giving benefit of doubt to them, since evidence of approver does not find material corroboration, though there is ample proof that the Prohibition Enforcement Wing of Kunjandiyur have been received mamool i.e., illegal gratification. Therefore, in case they are reinstated in service they may have continuity of service of all other purposes except to claim any back wages or any other type of monetary benefit for the period they remained out of service.
7. The further case of the petitioner is that the observations made by this Court in the said order of acquittal in the criminal appeal deals with two set of people, viz., one set of people, who already retired from service and another set of people were dismissed from service. Therefore since those who had been reinstated subsequent to the order of acquittal alone that observations would apply and it would not apply to the petitioner and the same cannot be put against him. Since he had already superannuated and got retired, the question of reinstatement would not arise. Therefore, the said observations of this Court at paragraph 37 cannot be put against the petitioner. In this regard, the petitioner had submitted further representation on 14.07.2004 to the respondent, which was again considered and rejected by the respondent, by order dated 04.08.2004. Challenging the said order passed by the respondent on 13.04.2004 and 04.08.2004, the petitioner has come out with the present writ petition with the aforesaid prayer.
8. Heard both sides.
9. The issue raised in this writ petition lies in the very narrow compass. The learned counsel for the petitioner would contend that whatever be an acquittal in the criminal case and based on which if the order of dismissal made against the petitioner has been set aside and the petitioner was permitted to retire from the duty on his superannuation and he was further given all retirement as well as the pensionary benefits also, for all practical purpose it should be considered as normal retirement and the criminal case in which he was initially convicted and subsequently acquitted cannot stand in the way. More over, some observations have been made by this Court in the said criminal appeal, that would make the petitioner entitle to claim his service benefits of notional promotion as Superintendent of Police from the date on which actually his junior was promoted and corresponding benefits including the pay arrears etc. Therefore, in this regard, the one and only reason given by the respondent in rejecting the plea of the petitioner is totally unsustainable and unlawful and therefore, interference of this Court is very much required in the impugned order.
10. Per contra, the learned Additional Government Pleader appearing for the respondent would contend that the petitioner's case has been considered favourably. He was not punished by the Government and only by the competent Court, therefore he was dismissed form service and he was permitted to be reinstated thereafter only on receipt of the order where the petitioner and some other similarly placed persons were acquitted. So far as the petitioner's case is concerned, since he has already attained the age of superannuation and his dismissal from service was set aside and consequently he was permitted to retire from duty on superannuation and also subsequently the Director General of Police was directed to draw and disburse the entire retirement and pensionary benefits to the petitioner, the reasons given by this Court in the criminal appeal in paragraph 37 are well founded and such observations cannot be simply brushed aside. Therefore, there is a justification on the part of the respondent to reject the claim of the petitioner for the notional promotion as Superintendent of Police with retrospective effect from the date of promotion of his immediate junior. Therefore, the learned Additional Government Pleader would contend that the impugned order is fully sustainable and needs no interference from this Court.
11. This Court has considered the said rival submissions made by the learned respective counsel and also perused the materials available on record. No doubt, the petitioner was initially convicted by the Trial Court in the criminal case and pursuant to which, the petitioner was not permitted to retire from service and only thereafter, because of the order passed by this Court in the criminal appeal filed by the petitioner along with the other connected cases by a common order dated 30.04.2002, the petitioner was acquitted from the charges, the respondent had issued Government orders to set aside the order of dismissal and also directed the Director General of Police to pay the petitioner all retirement and pensionary benefits. In this regard, the said observation made by this Court in the said criminal appeal at paragraph 37 as extracted herein above can very well be taken note by this Court for the purpose of deciding the claim made by the petitioner. In the said observation, this Court has stated in the following words. Insofar as the acquitted appellants who were dismissed from service, the acquittal was recorded only by giving benefit of doubt to them, since evidence of approvar does not find material corroboration, though there is ample proof that the Prohibition Enforcement Wing of Kunjandiyur have been receiving mamool i.e, illegal gratification. The above said findings made by this Court in the criminal appeal is neither a passing reference nor only the observations. Only on considering the entire issue, this Court had given such an observation and the words though there is ample proof that the Prohibition Enforcement Wing of Kunjandiyur have been receiving mamool i.e, illegal gratification would show that all these persons including the petitioner who were charged had been acquitted only by giving benefit of doubt by concluding that the entire Prohibition Enforcement Wing was receiving illegal gratification.
12. In this regard, this Court also finds some evidence recorded at paragraph 31. Some discussions were made regarding the evidence of P.W.4 at paragraph 31 of the said judgement and the relevant portion is reproduced here under:
31. P.W.4 also speaks to the effect that Inspector will have eight shares, Sub Inspector will have four shares each, constables will have two shares each, Grade-I constables will have one and a half share and the constables and the drivers will each have one share. It is his further evidence that an amount of Rs.1,000/- will given per week to A.26; Rs.1,250/- to A.25; Rs.150/- to A.28 and Rs.50/- t A.29. He would also say that when they go for the meeting, Inspector used to hand over the amounts to Additional Superintendent of Police and Deputy Superintendent of Police and he used to hand over to the Camp Clerk A.28 and Officer Assistant A.29. According to him, an amount of Rs.30,000/- to 35,000/- would be collected per week and A.25 used to received an amount of Rs.1,000/- for the purpose of handing over to Superintendent of Police ie., Mr.Kasim............
13. Though there are direct evidence against the petitioner and other accused in the said cases, this Court has rightly observed in the paragraph 37, that all the acquitted people including the petitioner are acquitted only by giving the benefit of doubt and not otherwise. Therefore, it can easily construe that the said acquittal is not a honourable acquittal. Law is well settled in this regard. If the criminal case ended in acquittal honourably without any mistake of the defence side, then, certainly the employee or officer concerned would be entitled for all benefits. If the criminal case is not ended so, accordingly in the instant case, the benefit of doubt cannot be considered as honourable acquittal and in that case, the further service benefits including notional promotion with retrospective effect and subsequent service benefits cannot be conferred on the employee or officer concerned.
14. More over, subsequent to the acquittal of the petitioner, the respondent passed G.O.Ms.No.634, Home (Pol.1A) Department dated 29.07.2003, setting aside the order of punishment already given to the petitioner and he was permitted to retire from service on superannuation ie., 30.11.1993. Subsequently, by further Government order in G.O.Ms.No.667, Home (Pol.1A) Department, dated 07.08.2003 the respondent further directed the Director General of Police to settle the pensionary and terminal benefits to the petitioner. Paragraph No.2 of the said G.O.667 reads as follows :-
2. The Director General of Police is therefore directed to settle the pension and other terminal benefits accordingly subject to the observations made in the Judgement first read above
15. In the said G.O.Ms.No.667 itself, the Director General of Police was directed to settle the pensionary and terminal benefits to the petitioner only subject to the observations made in the judgment first read above ie., judgment dated 30.04.2002, made in the Criminal Appeal Nos. 444 of 1999 etc., batch. Therefore, the very same G.O.Ms.No.667, Home (Pol.1A) Department, dated 07.08.2003, passed in favour of the petitioner itself is a conditional order ie., subject to the observations made by this Court in criminal appeal. While that being so, the petitioner having not challenged the said order of conditional benefits conferred on him under G.O.Ms.No.667 Home (Pol.1A) Department, dated 07.08.2003 cannot make any further claim based on the acquittal in the criminal case as against the present order impugned herein. Therefore, there is no force in the contention made by the learned counsel for the petitioner that whether it is honourable acquittal or otherwise, it is to be construed only as acquittal for the purpose of consequential benefits and therefore whatever benefits the petitioner otherwise is entitled to shall be given to him had there been no criminal cases pending or convicted against him.
16. More over, the further argument of the learned counsel for the petitioner, that there are two set of people. One set of people already retired and another set of people who were dismissed would be reinstated in service and the said observations made by this Court in paragraph 37 of the said judgment in criminal appeal No.444 of 1999 etc., batch, only can be made applicable to the persons who are reinstated in service, also have no force and the same is liable to be rejected.
17. In view of the aforesaid discussion and finding, this Court finds no error or infirmity in the order passed by the respondent which is impugned herein and in that view of the matter, the writ petition fails and it is liable to be dismissed. Accordingly, the writ petition is dismissed. However, there is no order as to costs.
02.12.2016 Index :Yes/No rts R.SURESH KUMAR,J.
rts To The Secretary to Government, Government of Tamil Nadu, Home (Police 1A) Department, Fort St. George, Chennai 600 009.
W.P.No.34673 of 200502.12.2016 http://www.judis.nic.in