Madras High Court
R. Duraisamy vs The Director Of Fire Service on 16 September, 2013
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16 09 2013 CORAM: THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN Writ Petition No. 6864 of 2009 R. Duraisamy ... Petitioner vs. 1. The Director of Fire Service Tamil Nadu Fire Service Egmore, Chennai 2. The Divisional Fire Officer Coimbatore Periyar Nilgiris Division Coimbatore 3. The Deputy Director West Zone Coimbatore Periyar Nilgiris Division Coimbatore ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus, to call for the records pertaining to the order of the third respondent bearing No. Pa.u.n.356/99 and Na.Ka.n.4236/aa1/99 dated 01.11.1999 and quash the same and consequently direct the respondents to treat the petitioner as in service for the purpose of pensionary benefits with all consequential benefits including backwages, pensionary benefits, attendant benefits. For Petitioner : Mr. R. Ramesh For Respondents : Mr. K.V. Dhanapalan, AGP O R D E R
The case of the petitioner, who was initially appointed as Foreman on 19.5.1969, and subsequently promoted as Fireman Mechanic and thereafter, as Fire Engine Driver, is that while he was working as a Driver in Coimbatore, he was placed under suspension by an order dated 23.7.1983 and again on 12.6.1984 in connection with a Criminal Case, pending disciplinary action, by invoking Clause 17(e) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. While he was under suspension, he was arrested on the allegation that he mishandled the Station Fire Officer and a Criminal Case was registered in Thudiyalur Police Station Crime No. 247 of 1983 under Sections 332 and 506(II) IPC. However, he was acquitted by the Chief Judicial Magistrate in the said case in C.C. No. 441 of 1983. While so, during the period of his suspension, he was again arrested on 16.12.1983 in connection with Criminal Case registered against him on the file of B3 Kattur Police Station Crime No. 1733 of 1983 under Section 302 IPC. The Petitioner was thereafter convicted by the First Additional Sessions Judge, Coimbatore, on 16.7.1984 and sentenced to undergo Life Imprisonment. Based on his conviction, he was dismissed by the Second Respondent from service by an order dated 20.7.1984 with effect from 16.7.1984 and the appeal dated 26.8.1999 filed as against the aforesaid order of dismissal was also rejected by the Third Respondent Deputy Director, West Zone, by order dated 01.11.1999. Challenging the said order, the Petitioner has filed this Writ Petition and for a direction to the Respondents to treat the Petitioner as in service and to consequently direct them to provide all monetary benefits including backwages and also pensionary benefits.
2. A counter affidavit is filed by the Third Respondent refuting the allegations. It is stated that the Writ Petition is filed after ten years after the passing of the impugned order dated 01.11.1999 and, therefore, the same is liable to be dismissed for belatedly approaching this Court. It is also stated that the Petitioner filed O.A. No. 6039 of 2001 before the Tamil Nadu Administrative Tribunal questioning the order of suspension and the same was dismissed on 22.10.2002. It is further stated that since the order of the Tribunal attained finality, the findings rendered by the Tribunal relating to dismissal is binding on the Petitioner.
3. At the outset, learned counsel appearing for the Petitioner contended that the order of dismissal was not served on the Petitioner and, therefore, the Writ Petition has to be allowed on that ground alone. Secondly, it is submitted that the Third Respondent has erroneously proceeded as if the Petitioner was awarded with the sentence of Five Years Imprisonment by this Court in Criminal Appeal. According to him, this Court has set aside the conviction and sentence imposed on the Petitioner under Section 302 IPC r/w 34 IPC by the Trial Court and instead, the Petitioner was convicted under Section 323 IPC and restricted the sentence of Imprisonment to the period already undergone. Learned counsel has relied on the judgment of this Court dated 15.11.1988 in Criminal Appeal No. 529 of 1984.
4. On the other hand, learned Special Government Pleader representing the Respondents / State submitted that the Writ Petition is liable to be dismissed on the ground of laches alone. The Petitioner has not adduced any reason for filing this Writ Petition after ten years. Secondly, it is submitted that the Petitioner cannot now advance the argument that the dismissal order was not served on him, more particularly, when he made an appeal against the dismissal order before the Third Respondent and the same was confirmed by the Appellate Authority by the impugned order dated 01.11.1999. It is therefore, submitted that the contention of the learned counsel for the Petitioner that the order of dismissal was not served on the petitioner, has no substance. Thirdly, it is submitted that the Tamil Nadu Administrative Tribunal rejected O.A. No. 6039 of 2001 filed by the Petitioner questioning the order of suspension dated 23.7.1983 and 12.6.1984 based on a Criminal Case, on 22.10.2002 on the ground that the Petitioner suppressed the fact of dismissing him from service and the order of the Tribunal has attained finality. Hence, according to the learned Additional Government Pleader, the order of Tribunal is binding on the Petitioner.
5. Heard the submissions made by the learned counsel appearing for the Petitioner as well as the learned Additional Government Pleader representing the Respondents / State and perused the records.
6. As stated above, two issues have now been canvassed before this Court by the Petitioner. While the first one is with regard to non-serving of the order of dismissal on the Petitioner, the second one is that the Appellate Authority has erroneously proceeded as if the Petitioner was awarded with the sentence of 5 years Rigorous Imprisonment by this Court in the Criminal Appeal.
7. As far as the first issue is concerned, I am of the view that the same has no substance. The Petitioner, after his acquittal under Section 302 IPC by this Court in the order dated 15.11.1988 in Criminal Appeal No. 529 of 1984, made an appeal and the Appellate Authority rejected the same by order dated 01.11.1999 refusing to set aside the dismissal order. The said order is put to challenge in this Writ Petition.
8. Having filed an appeal against the order of dismissal pursuant to the acquittal under Section 302 IPC, it does not lie in the mouth of the Petitioner that the dismissal order was not served on him.
9. Furthermore, as rightly contended by the learned Additional Government Pleader, the Petitioner sought to question the suspension orders dated 23.7.1983 and 12.6.1984 by filing O.A. No. 6039 of 2001 suppressing the order of dismissal as well as the order of the appellate authority. The Tribunal, after considering the issues in detail, has recorded a finding that the Petitioner did not come with clean hands and he suppressed about the order dismissing him from service and also the appeal order confirming the same and accordingly, dismissed O.A. No. 6039 of 2001 on 22.10.2002. It is also held that dismissal order was not challenged by the Petitioner before the Tribunal and it became time-barred. Penultimate paragraph 4 of the order of Tribunal is extracted herein:-
"The applicant seems to have preferred an appeal C.A. No. 529 of 1984 before the High Court, Madras. But, in view of the conviction of the applicant by the trial Court that too for an offence under Section 302 I.P.C., the respondent has issued a show cause notice and after receiving an explanation or reply from the applicant, an order of dismissal from service has been passed. Therefore, the suspension order impugned in this application is no more in force, but has merged with the order of dismissal against which the applicant has not preferred any appeal. The applicant has been dismissed from service in 1984 itself and it seems he has not preferred any appeal against the order of dismissal. The order of dismissal has become final. The applicant seems to have preferred some letters to the Chief Minister's Cell subsequent to his acquittal under Section 302 I.P.C. by virtue of the judgment of the High Court dated 15.11.1988. It seems he also made a representation to the Divisional Fire Officer pointing out the fact that the High Court has acquitted him under Section 302 I.P.C. and he has been convicted only under Section 323 I.P.C. But, this representation was also rejected by the disciplinary authority. Suppressing all these facts as if the orders of suspension are not valid, the applicant has proceeded to file this applicant which is therefore, liable to be dismissed. The order of dismissal has not been challenged in time, perhaps it has become time barred now. Anyhow, since the order of suspension is merged with the order of dismissal in respect of the applicant, this application is dismissed."
10. The Tribunal has categorically held that the Petitioner could not challenge the dismissal order as it became time-barred. If it is so, the Petitioner also cannot file Writ Petition against the impugned order, that too, after ten years. Hence, in these circumstances, I am of the view that the first contention placed by the Petitioner must fail.
11. The next contention is that the Appellate Authority has erroneously proceeded that the Petitioner was awarded five years Rigorous Imprisonment by this Court in the Criminal Appeal preferred by him against the conviction and sentence imposed on him for the offence under Section 302 IPC r/w 34 IPC.
12. It is true that the Appellate Authority, while considering the appeal preferred by the Petitioner as against the order of dismissal, has proceeded as if this Court has reduced the sentence from Life Imprisonment to Five Years Rigorous Imprisonment in the appeal preferred by him against the conviction and sentence of imprisonment imposed by the trial Court. The following passage from the appellate order dated 01.11.1999 is extracted in this regard.
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13. But this Court in Criminal Appeal No. 529 of 1984 preferred by the Petitioner against the conviction and sentence of Life Imprisonment imposed by the trial Court under Section 302 r/w 34 IPC, by judgment dated 15.11.1988 set aside the conviction and sentence imposed on the Petitioner under Section 302 IPC r/w 34 IPC and instead, he was convicted under Section 323 IPC r/w 34 IPC and the sentence was restricted to the period of imprisonment that was already undergone by him. Paragraph 18 of the judgment dated 15.11.1988 in the Criminal Appeal No. 529 of 1984 is extracted in this regard:
"What remains to be considered is the sentence that has to be awarded to each one of the appellants. It is represented by the respective counsel that A.1 and A.2 had spent a short period in jail and they are now on bail for nearly four years. As far as A.3 is concerned, it is stated that he is still serving the sentence in jail and has completed approximately five years in prison. Taking these facts in to consideration while setting aside the convictions and sentences imposed on A.1 and A.2 under Section 302 I.P.C. read with Section 34 I.P.C., by the trial Court, we instead convict A.1 for an offence under Section 323 I.P.C., and A.2 for an offence under Section 323 I.P.C. read with Section 34 I.P.C. and restrict the sentences of imprisonment on each of them to the period already undergone. As far as A.3 is concerned, we set aside the conviction and sentence imposed by the trial Court under Section 302 read with Section 34 I.P.C. and instead convict him under Section 304(1) I.P.C., and sentence him to undergo rigorous imprisonment for five years."
14. A perusal of the judgment passed by this Court in the Criminal Appeal would make it clear that the Appellate Court did not acquit him of all the charges. Instead, while setting aside the conviction under Section 302 I.P.C., it imposed conviction under Section 323 IPC. The period underwent by him in prison was treated as the sentence by this Court. Therefore, I am not inclined to interfere with the impugned order on this ground.
15. Furthermore, the Petitioner has chosen to question the order dated 01.11.1999, after more than ten years. As such, the Writ Petition is liable to be dismissed on the ground of laches. More importantly as rightly contended by the learned Special Government Pleader, the Tamil Nadu Administrative Tribunal has categorically held that the Petitioner cannot challenge the dismissal order as it is time barred. The Petitioner cannot also challenge the appellate order upholding the dismissal order.
In view of the above, the Writ Petition is dismissed as having no merits. No costs.
16 09 2013 Index : Yes Internet : Yes gri To
1. The Director of Fire Service Tamil Nadu Fire Service Egmore, Chennai
2. The Divisional Fire Officer Coimbatore Periyar Nilgiris Division Coimbatore D.HARIPARANTHAMAN, J.
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3. The Deputy Director West Zone Coimbatore Periyar Nilgiris Division Coimbatore W. P. No. 6864 of 2009 16 09 2013