Madras High Court
K.Perumal vs The Secretary To The Government Of Tamil ... on 24 February, 2023
Author: S.Srimathy
Bench: S.Srimathy
W.P.(MD).No.22348 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.02.2023
CORAM
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD).No.22348 of 2017
and
W.M.P.(MD).Nos.18654 and 18655 of 2017
K.Perumal ... Petitioner
Vs.
1.The Secretary to the Government of Tamil Nadu,
Department of Home (Prison II),
Fort St.George,
Chennai – 600 009.
2.The Additional Director General of Police and
Inspector General of Prisons,
Chennai – 600 008.
3.The Deputy Inspector General of Prisons,
Madurai Range,
Madurai.
4.The Superintendent of Prisons,
Central Jail,
Madurai. ... Respondents
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https://www.mhc.tn.gov.in/judis
W.P.(MD).No.22348 of 2017
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, calling for the
records pertaining to the impugned orders passed by the first respondent in
G.O.Ms.No.156, Home (Prison-II) Department dated 07.02.2017 and the
consequential proceedings issued by second respondent in
No.26833/EW1/2016 dated 25.05.2017 and the proceedings issued by the
second respondent in No.20960/EW1/2016 dated 25.07.2016 and the
proceedings issued by the second respondent in No.34301/EW1/2013 dated
05.02.2014 and the proceedings issued by the third respondent in No.
643/Mu.Vu/13 dated 13.03.2013 and quash the same and consequently direct
the respondents to pay all monetary and attendant benefits to the petitioner.
For Petitioner : Mr.S.Ramsundar Vijayraj,
For M/s.Veera Associates.
For Respondents : Mr.J.John Rajadurai,
Government Advocate.
ORDER
This Writ Petition is filed challenging the impugned order passed by the first respondent in G.O.Ms.No.156, Home (Prison-II) Department dated 07.02.2017 and the consequential proceedings dated 25.05.2017 and the proceedings issued by the second respondent dated 25.07.2016 and 05.02.2014 and the proceedings issued by the third respondent dated 13.03.2013 and 2/9 https://www.mhc.tn.gov.in/judis W.P.(MD).No.22348 of 2017 consequently direct the respondents to pay all monetary and attendant benefits to the petitioner.
2. The petitioner joined the respondent Office as Grade-II Warden on 29.02.1984. While the petitioner was working as Grade-II Warden at Sub Jail, Kodaikkanal, a charge memo dated 31.01.1996 was issued under 17(b) of the Tamil Nadu Civil Services (D & A) Rules, charging the petitioner for 3 counts. The charges against the petitioner are as under:
1. 30.10.95 md;W bghJ ,lj;jpy; jpU.b$auj;jpdfhe;jp ,uz;lhk; epiyf;
fhtyhpd; rl;iliag; gpoj;J ,Gj;J jfuhW bra;J> jfhj thh;j;ijfshy; jpl;o> uj;jf; fhak; Vw;gLk; tifapy; moj;jJ. nkYk; mthpd; cilikfis fhh;L miwapypUe;J btspna Jhf;fp vwpe;jJ.
2. 31.10.95 md;W mjpfhiy 3.00 kzp Kjy; 6.00 kzptiuapyhd ghuh neuj;jpy; Jhq;fpaJ.
3. ghuh gjpntl;oid jpU.b$auj;jpdfhe;jp> 2k; epiyf;fhtyh; fpHpj;J khw;wp vGJtjw;F cWJizahf ,Ue;jJ.
The petitioner participated in the enquiry proceedings and the enquiry report was submitted on 27.07.1999 holding the charges are proved. Based on the enquiry report, the petitioner was imposed with the punishment of compulsory retirement vide order dated 07.09.1999. The petitioner preferred Statutory Appeal and the same was dismissed on 30.11.1999. The petitioner challenged the same in O.A.No.4180 of 2000. During the pendency of the 3/9 https://www.mhc.tn.gov.in/judis W.P.(MD).No.22348 of 2017 above said O.A, the petitioner also preferred a Review Petition before the authorities and the same was dismissed on 25.04.2000. The said O.A. has been transferred and renumbered as W.P.No.14242 of 2006. This Court after hearing the elaborate arguments, quashed the order of compulsory retirement and directed the respondents to reinstate the petitioner into service with all attendant benefits vide order dated 22.09.2010. Aggrieved over the same, the respondents have preferred W.A.No.878 of 2011 and the learned Single Judge order was modified to the effect that the matter was remanded back to the appellate authorities for fresh consideration vide order dated 11.01.2013. The Review Petition filed by the petitioner was considered and dismissed on 25.04.2000. The Review Petition was dismissed prior to the Writ Appeal order. Thereafter, based on the order of the Division Bench, the third respondent has modified the punishment of compulsory retirement to stoppage of increments for a period of 5 years with cumulative effect vide order dated 13.03.2013. The petitioner was reinstated and joined the duty on 17.05.2013. The service for the period of absence was regularized vide proceedings dated 20.06.2013. While regularizing the said service, the period from 08.09.1999 to 12.03.2013 that is 4935 days were treated as leave on loss of pay. From 13.03.2013 to 25.05.2013, that is 69 days was treated as compulsory waiting period. For the 4/9 https://www.mhc.tn.gov.in/judis W.P.(MD).No.22348 of 2017 second period alone, the respondents have paid salary. The petitioner has not preferred any appeal against the regularization order. However, preferred an appeal against the modified order of stoppage of increment for 5 years with cumulative effect. However, the same were confirmed by the appellate authorities. In the meantime, the petitioner has attained superannuation on 31.05.2017. Since the respondents have failed to take the continuity of service into consideration, the petitioner is before this Court.
3. The respondents have filed a counter stating that after the matter was remanded back, the petitioner was granted an opportunity, after considering the same, the punishment was modified. Since the petitioner was out of employment for period more than 4000 days, the same was considered as per the rules and regulation and the petitioner's service was considered as leave on loss of pay. Since there was no work no pay, the petitioner cannot claim the said period for any monetary benefits, that is why the respondents have regularized the said period as loss of pay. Since all the orders are passed as per rules and regulations, after providing opportunity to the petitioner, the respondents prayed to dismiss this Writ Petition.
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4. Heard Mr.S.Ramsundar Vijayraj, For M/s.Veera Associates, learned counsel appearing for the petitioner and Mr.J.John Rajadurai, learned Government Advocate appearing for the respondents and perused the records.
5. The original punishment order of compulsory retirement was challenged before this Court and this Court has rendered a finding that absolutely there is no evidence that the petitioner had colluded with the said Jeyarathina Gandhi in tearing the para register. The original authority has not taken this fact into consideration. Even in the appellate order, this fact was not considered. Moreover, it is seen from the records as well as in the charge memo, the said Jeyarathina Gandhi had teared the para register and the allegation against the petitioner is that, the petitioner had aided the said Jeyarathina Gandhi to tear the para register. The respondents have not initiated any action against the said Jeyarathina Gandhi. Therefore, this Court is of the considered opinion that the action taken by the respondents is absolutely discriminatory. Moreover, the first charge and the third charge are inconsistent with each other. The first charge against the petitioner is that he has beaten the said Jeyarathina Gandhi in public place and has inflicted blood injury and used foul language against him. The third charge states that he has colluded with the 6/9 https://www.mhc.tn.gov.in/judis W.P.(MD).No.22348 of 2017 said Jeyarathina Gandhi and has teared the para register. If the petitioner is not having any cordial relationship and has fight with the said Jeyarathinagandhi, he would not have colluded with the said Jeyarathinagandhi while tearing the para register.
6. Therefore, this Court is of the considered opinion that the very charge memo itself is inconsistent and the punishment against the petitioner is on the higher side. However, this Court is not interfering with the punishment, but is inclined to interfere with the regularization of the non-employment period. The petitioner entitled to continuity of service without any monetary benefits of the salary to the said period. The petitioner has put in service right from 1984 onwards, therefore, the petitioner is entitled to continuity of service. Therefore, the order passed to regularize the said period as leave on loss of pay is set aside. The respondents are directed to grant continuity of service and the petitioner is not entitled to any backwages for the non-employment period. But the said period shall be taken as service period and pay all the service benefits to the petitioner. The said exercise shall be completed within a period of eight (8) weeks from the date of receipt of a copy of this order.
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7. In view of the above, the impugned order is quashed to the extent stated above and this Writ Petition is partly allowed. There shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
24.02.2023
Index : Yes / No
Internet : Yes/ No
Nsr
To
1.The Secretary to the Government of Tamil Nadu,
Department of Home (Prison II),
Fort St.George,
Chennai – 600 009.
2.The Additional Director General of Police and
Inspector General of Prisons,
Chennai – 600 008.
3.The Deputy Inspector General of Prisons,
Madurai Range,
Madurai.
4.The Superintendent of Prisons,
Central Jail,
Madurai.
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https://www.mhc.tn.gov.in/judis
W.P.(MD).No.22348 of 2017
S.SRIMATHY, J.
Nsr
W.P.(MD).No.22348 of 2017
24.02.2023
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https://www.mhc.tn.gov.in/judis