Madras High Court
R.K. Palani vs The Superintendent Of Police on 6 August, 2008
Author: P.K. Misra
Bench: P.K. Misra
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date:- 06.08.2008
Coram
The Honourable Mr. Justice P.K. MISRA
and
The Honourable Mr. Justice K. KANNAN
W.P. No.29520 of 2007
and
M.P. No.2 of 2007
R.K. Palani ... Petitioner
..vs..
1. The Superintendent of Police,
Kancheepuram.
2. The Deputy Inspector General,
Chennai Range. ... Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus, to call for the records pertaining to the order passed by the Tamil Nadu Administrative Tribunal (now Abolished) in O.A. No.8793 of 1998 dated 26.4.2004, quash the same in respect of non mentioning of effect of modified punishment and consequently specify the date of commencement of the modified punishment from the actual date of punishment (i.e. 14.10.1998), instead of date of order (i.e. 26.4.2004) and further direct the respondents to confer all consequential benefits including promotion to the post of Sub Inspector of Police on pay with his junior.
For Petitioner : Mr. M. Hidayathulla Khan
For Respondents: Mrs. Geetha Thamaraiselvan,
Govt. Advocate
O R D E R
(Order of the Court was made by P.K. MISRA, J.) Heard Mr. M. Hidayathulla Khan, learned counsel appearing for the petitioner and learned Government Advocate appearing for the respondents.
2. The petitioner, at the time when disciplinary proceedings were initiated, was functioning as Head Constable. In the disciplinary proceedings, the department had imposed the punishment of dismissal from service by an order dated 14.10.1998. Such order came to be challenged at the instance of the petitioner in O.A. No.8793 of 1998. The Tribunal, while basically agreed with the findings regarding mis-conduct of the delinquent, observed as follows:-
" 14. ............ So evidence has clearly established that these applicants have not performed the duties assigned to them in a proper manner and they have allowed the prisoners to be taken out to place which was not in their itinerary. Any how it is proved by the evidence of P.W.7 that the applicant has betrayed the trust imposed on them and they have misused their position and they have taken out the prisoners that the prisoners were taken out by these applicants to commit robbery or they had any part to play in the actual robbery. The fact that a robbery took place in the shed is admitted by other witnesses but identity of participants have not been proved. The fact that the applicants have allowed the prisoner to leave the place for about 7 minutes is proved and this act is misused of their position and abuse of the authority. The punishment of dismissal has been imposed by the Superintendent of Police stating that they have also participated in the act of robbery for which there is absolutely no evidence. Evidence is available only to the limited extent that the applicants have abused their position as escort constables and have taken away the prisoners for about 7 minutes unauthorisedly.
15. For this act of misconduct proper punishment will be postponement of increment for 5 years with cumulative effect. For the limited period when they were out of employment, the are not entitled to any wages. The punishment of dismissal is modified to this extent and the applications are ordered in the terms."
3. After such order was passed by the Tribunal, the Department passed a further order dated 20th July, 2004, wherein the Department indicates that the punishment of postponement of increment would commence from the date of such order and accordingly, such order was implemented by the Department. Thereafter, the seniority list of the Head Constable was drawn up on 21.6.2007.
4. Thereafter, the petitioner has filed this writ petition, seeking to issue a writ of certiorarified mandamus, to call for the records pertaining to the order passed by the Tamil Nadu Administrative Tribunal (now Abolished) in O.A. No.8793 of 1998 dated 26.4.2004, quash the same in respect of non mentioning of effect of modified punishment and consequently specify the date of commencement of the modified punishment from the actual date of punishment (i.e. 14.10.1998), instead of date of order (i.e. 26.4.2004) and further direct the respondents to confer all consequential benefits including promotion to the post of Sub Inspector of Police on par with his junior.
5. It is to be noted that the petitioner has not challenged the order dated 20th July, 2004 nor the petitioner has challenged the seniority list of the Head Constables. The sole contention of the petitioner is to the effect that once the order of dismissal was modified and a lesser punishment of postponement of five increments with cumulative effect was passed by the Tribunal, it must be taken that such punishment substitutes the original punishment of dismissal with effect from 14.10.1998. Therefore, it should be taken that the postponement of increment shall be deemed to have been effected from 14.10.1999 to 14.10.2003. The contention raised by the learned counsel for the petitioner is that since the currency of the punishment is deemed to be over on 14.10.2003, the case of the petitioner should have been considered for promotion thereafter.
6. Learned counsel appearing for the Department on the other hand submitted that even though the order of dismissal had been modified, the Tribunal had not directed that the person was entitled for all consequential service benefits including continuity of service. Therefore, it cannot be assumed that the person had been reinstated in service with all consequential benefits with effect from the original date of punishment of dismissal.
7. Learned counsel appearing for the respondents has placed reliance upon the decision reported in the case of J.K. SYNTHETICS LIMITED v. K.P. AGRAWAL ((2007) 2 SUPREME COURT CASES 433), wherein, after referring to all the decisions on the point, the Supreme Court observed as follows:-
" 17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically. Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud ((2003) 2 SCC 212 : 2003 SCC (L&S) 161), A.P. SRTC v. Abdul Kareem ((2005) 6 SCC 36 : 2005 SCC (L&S) 790) and Rajasthan SRTC V. Shyam Bihari Lal Gupta ((2005) 7 SCC 406 : 2006 SCC (L&S) 67).
19. But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc."
8. In order to appreciate the contention of the rival parties, it is also necessary to note another factor. When the order of dismissal was challenged by the petitioner by filing Original Application, surprisingly, an order of stay was granted and the Department, at that stage, allowed the petitioner to function as Head Constable. We are also told that during the said time, the petitioner was in fact paid his regular salary along with the increment from year to year.
9. In this background, the question now to be examined is as to whether the punishment of postponement of increment should be deemed to have been commenced with effect from 14.10.1998 or from the date of the subsequent order passed by the Department, apparently, implementing the order of the Tribunal, is to be upheld. It is also to be noted that it was open to the petitioner to specifically challenge the subsequent order dated 20th July, 2004.
10. Be that as it may, the filing of present writ petition can be construed as indirectly seeking direction against such order dated 20th July, 2004. It is no doubt true that it was open to the Tribunal to give a specific direction at that stage as to whether the person was deemed to have been reinstated with all attendant benefits and possibly, the Tribunal could have stated that the postponement of increment would be with effect from 14.10.1998. On the other hand, we find that the Tribunal, in its order, has stated in paragraph 15 that the proper punishment will be postponement of increment for five years with cumulative effect. This direction rather gives the impression that the Tribunal intended that postponement of increment would be only after the actual reinstatement of the person in service not from a retrospective date.
11. Apart from the above, from the decision of the Supreme Court cited supra, it is apparent that there is no automatic reinstatement in service with all attendant consequential benefits. In the present case, the Tribunal has in fact found that there was gross dereliction of duty on the part of the petitioner. However, the Tribunal, in its wisdom, interfered with the punishment and such order became final in the sense that the State Government has not chosen to challenge such order. If the contention of the petitioner would now be accepted, it would result in a person belonging to a disciplined force is found guilty of gross dereliction of duty, which resulted in three persons committing grievous offence of robbery taking advantage of laxity of police, being rewarded for his gross negligence of duty.
12. In this only context, the Supreme Court has held that there should not be automatic reinstatement of a person, who was found guilty by the departmental Authorities.
13. Learned counsel appearing for the petitioner has submitted that if the stoppage of increment takes effect as per the subsequent order passed by the Department, the delinquent would be 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 the petitioner was in fact paid the regular increment during the period he served by virtue of the interim order. Therefore, it is not true 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, the petitioner cannot ask for the same as a matter of right. Obviously, while the dismissal order was still in force, even though it was stayed, the petitioner should not have been considered for promotion, since the postponement of increment is in effect from 20th July, 2004. Obviously, the petitioner cannot be considered for promotion during the currency of such punishment. Law is well settled that if the person is not promoted because of punishment by the departmental proceedings, the denial of such promotion cannot be held as second punishment.
16. In the above view of the matter, we do not find any merit in the writ petition and the same is dismissed. Consequently, the connected M.P. is also dismissed. No costs.
ssa.
To
1. The Superintendent of Police, Kancheepuram.
2. The Deputy Inspector General, Chennai Range