Madras High Court
L.Raghavan vs Superintendent Of Police on 28 January, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.01.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.39066 of 2006 L.Raghavan ... Petitioner Versus Superintendent of Police District Police Office Kancheepuram District at Kancheepuram. ... Respondent PRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.8145 of 1999 from the file of Tamil Nadu Administrative Tribunal with a prayer to quash the punishment of compulsory retirement from service passed by the respondent herein in his P.R.No.58/97 dated 17.11.1998 and consequently direct the respondent herein to reinstate the petitioner in service with all consequential monetary and service benefits. For Petitioner : Mr.Ravi Shanmugam For Respondent : Mr.S.Shiva Shanmugam Government Advocate O R D E R
The Original Application in O.A.No.8145 of 1999 before the Tamil Nadu Administrative Tribunal is the present writ petition.
2.The petitioner joined the services as Grade II Police Constable on 14.11.1975. He worked for 23 years in the Department. While so, the respondent passed an order dated 27.03.1996 that the petitioner would be treated as "deserter" with effect from 29.02.1996 as he absented for 21 days without obtaining prior permission. Thereafter, the respondent issued a charge memo under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules alleging that the petitioner was unauthorisedly absent from 29.02.1996. An enquiry was conducted. Based on the findings of the Enquiry Officer, the respondent passed the order dated 17.11.1998 imposing the punishment of compulsory retirement from service from the date of desertion.
3.The petitioner filed Original Application in O.A.No.8145 of 1999 (W.P.No.39066 of 2006) to quash the order dated 17.11.1998 and for a consequential direction to reinstate him in service with all benefits.
4.Heard Mr.Ravi Shanmugam, learned counsel for the petitioner and Mr.S.Shiva Shanmugam, learned Government Advocate for the respondent. The respondent filed reply affidavit refuting the allegations.
5.The learned counsel for the petitioner has confined to his argument that the impugned order in so far as giving retrospective effect for compulsory retirement is bad. That is, he has no quarrel for the punishment of compulsory retirement. According to him, the punishment should operate only prospectively unless rules provide otherwise. The learned counsel for the petitioner relies on para 7 of the Original Application. According to him, it was not effectively answered by the respondent in para 12 of the reply affidavit.
6.On the other hand, the learned Government Advocate seeks to sustain the impugned order relying on the reply affidavit.
7.I have considered the submissions made on either side. Para 7 of the Original Application, which is relevant for the purpose of this case is extracted hereunder:
"7.The applicant states that on 17.11.1998 the respondent had passed an order awarding a punishment of compulsory retirement from service with effect from the date of desertion. This impugned order is contrary to rules. No order of compulsory retirement can be passed with retrospective effect and any punishment can only be prospective."
Para 12 of the reply affidavit in answer to para 7 of the Original Application is also extracted hereunder:
"12.The contention of the Applicant in para.6(7) is not correct. Since the Applicant was in long desertion and not taken back for duty, he was compulsorily retired from service with effect from the date of Desertion by Superintendent of Police, Kanchipuram. Hence the order is not contrary to rules, as contended by the Applicant."
8.As rightly contended by the learned counsel for the petitioner, Rule 2 of the Tamil Nadu Police Subordinate Service (Discipline and Appeal) rules that prescribes compulsory retirement as one of the punishment nowhere vests power to the authorities to impose the punishment retrospectively. Hence, the learned counsel for the petitioner is correct in his submission that the retrospective operation of the compulsory retirement is bad.
9.The learned counsel for the petitioner has also relied on a decision of the Honourable Apex Court in JEEVARATNAM VS. STATE OF MADRAS reported in AIR 1966 SC 951. The relevant passage from paras 4 and 5 of the said judgment are extracted hereunder:
"4.The order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension, that is to say, from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949. The two parts of this composite order are separable. The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective.............
5................ An order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date........."
The aforesaid judgment also squarely covers the issue involved in the present writ petition.
10.For the aforesaid reasons, the impugned order is quashed in so far as giving retrospective effect to compulsory retirement and the compulsory retirement comes into operation only from 17.11.1998 i.e. the date of the order.
11.The writ petition is allowed to the extent indicated above. No costs.
TK To The Superintendent of Police District Police Office Kancheepuram District