IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.01.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.20320 OF 2008 .. K.Kuppsamy .. Petitioner vs. 1.The State of Tamil Nadu rep. By its Secretary to Government Forests and Environment Department Fort St.George, Chennai 600 009. 2.The Conservator of Forests Social Forestry Circle Salem. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mrs.Selvi George For respondents : Mr.S.N.Kirubanandan Spl. Govt.Pleader .. ORDER
The writ petitioner challenges the order of the Government in G.O.(D) No.32, Environment and Forest (FR IX) Department dated 7.7.2008, also seeking direction against the respondents to pay full salary and allowances with attendant benefits to him during the period of absence viz., from 9.7.1980 to 30.9.1982, the date of termination till reinstatement was ordered.
2. The petitioner was appointed as Forester on 29.1.1980 by Selection Committee and he was placed under suspension when he was working in the Extension Forestry Division I on 9.7.1980 by the District Forest Officer on the ground that he was convicted by the Sessions Court, Salem for an offence under section 302 IPC. A show-cause notice was issued by the District Forest Officer on 15.10.1980, as to why he should not be dismissed from service. A detailed explanation was submitted on 13.10.1980 by the petitioner stating that the petitioner filed an appeal before the High Court against the judgment of the Sessions Court and the High Court suspended the sentence pending the appeal. In spite of the same, the District Forest Officer terminated the services of the petitioner by order dated 4.9.1981 with effect from 9.8.1980.
2(a) Against the said termination order, the petitioner filed an appeal before the Conservator of Forests, Salem on 30.9.1980. In the meantime, the criminal appeal filed by the petitioner against the conviction by the Sessions Court was allowed by the High Court on 30.4.1982 in Crl.A.No.517 of 1980, acquitting the petitioner from the charges leveled against him and thereafter, the petitioner was reinstated in service by the order of the second respondent on 22.9.1982 and he joined duty as Forester on 1.10.1982.
2(b) While passing such reinstatement order, the second respondent stated that the period of absence from the date of termination till the date of rejoining should be treated as leave period to which the petitioner was eligible instead of treating it as duty period. It was against the said portion of the order of the second respondent dated 1.10.1982, the petitioner filed appeal before the Chief Conservator of Forests, who confirmed the order of the second respondent on 11.7.1983, against which the petitioner filed a memorandum to the first respondent.
2(c) Even though the Chief Conservator informed the petitioner that the memorandum was rejected by the Government, there was no communication from the first respondent. When the petitioner approached the Tamil Nadu State Administrative Tribunal by filing T.A.No.275 of 1993, the same was dismissed against which the petitioner filed W.P.No.30532 of 2004 and the High Court, while dismissing the writ petition, directed the petitioner to approach the Government with a representation. Accordingly, the petitioner submitted a representation to the first respondent and the Government by the impugned order dated 7.7.2008, rejected the claim of the petitioner against which the present writ petition is filed.
3. The main ground on which the impugned order is challenged is that the order is against the Rule 54 of the Tamil Nadu Fundamental Rules. It is the case of the petitioner that the suspension period was not at all informed to the petitioner and no charge or no show-cause notice was issued before treating the period of absence as leave period, that when the High Court entertained the criminal appeal against the judgment of the Sessions Court, the High Court suspended the sentence and hence, the petitioner ought not to have been terminated from service and that the petitioner is entitled to have the period of absence to be treated as duty period since he has been honourably acquitted from the criminal charge and the principles laid down by the Honble Apex Court in State of Punjab & others vs. Shambhunath Singla & others [(1996) I SCC 296] have not been followed and therefore, it is discriminatory.
4. In the counter affidavit filed by the first respondent, it is stated that at the time when the petitioner was terminated from service, the same was done after issuing show-cause notice to the petitioner dated 15.10.1980. Against the termination, the petitioner filed an appeal before the second respondent and in the meantime, the High Court acquitted the petitioner and hence, the second respondent passed reinstatement order on 29.9.1982, directing the period of absence from the date of termination till the date of joining to be treated as leave to which the petitioner is eligible.
4(a) It is also stated that the period between 9.7.1980 and 30.9.1982 has been treated as period of leave and the appeal filed by the petitioner was rejected and the memorandum filed by the petitioner was also rejected by the first respondent. Against that, the petitioner filed W.P.No.2285 of 1986, which was subsequently transferred to the Tamil Nadu State Administrative Tribunal and numbered as TA.275/93 and the Tribunal while dismissing the application of the petitioner, clearly held that the petitioner was not entitled to claim the said period as period of duty, taking note of the fact that the Fundamental Rule in that regard, by way of amendment, was introduced only in the year 1989 with effect from 1987 and therefore, the said Fundamental Rule is not applicable to the case of the petitioner.
4(b) The writ petition filed against the order of the Tribunal was also dismissed on 26.10.2004. However, the High Court permitted the petitioner to make a representation if so desired. It was, after considering the representation of the petitioner so made, the impugned order came to be passed.
5. I heard the learned counsel for the petitioner and the learned counsel for the respondents 1 and 2.
6. Exactly the same point which has been raised by the petitioner in this writ petition was raised by him in the earlier writ petition filed in W.P.No.2285 of 1986 which was subsequently transferred to the Tamil Nadu State Administrative Tribunal and numbered as TA.275/93. The Tribunal in its final order dated 20.3.2003, categorically found on facts that the claim of the petitioner for application of F.R.54(9) is not acceptable, as F.R.54(9) was introduced only in the year 1989 with effect from 1987, whereas the period of termination and reinstatement in the case of petitioner was from 1980 to 1983 and therefore, the Fundamental Rule has no application to the petitioners case.
7. In fact, the Tribunal has also dealt with the judgment of the Supreme Court relied upon by the learned counsel for the petitioner in State of Punjab & others vs. Shambhunath Singla & others [(1996) 1 SCC 296] and held that that decision was based on the rules in existence, on the facts of that case. The order of the Tribunal in categorical terms is as follows:
” 2. The conviction and the suspension and the acquittal have all taken place between 1980 and 1983. As per F.R.54(9) now the position is very clear that if a Government servant has been suspended because of registering a criminal case and even if he is removed following conviction, if ultimately, he is acquitted, irrespective of the merits of the case or the grounds on which he is acquitted, he is entitled to full pay and the period shall be treated as duty period. But, this ruling in the F.R. was brought only by way of amendment or new introduction in the year 1989 with effect from 1987. Therefore, as per the rules than in force, the Authorities concerned are perfectly justified in refusing to treat the period of suspension and unemployment as duty period. The applicant has been concerned in a murder case, grave allegations are made and in the absence of copy of the judgment, I am not in a position to hold whether the applicant has been honourably acquitted or the applicant was given the benefit of doubt. But, the Authorities who have passed the impugned order have occasion of going through the judgment and only considering the findings of the Judge, they have chosen to treat the period of absence as leave and has not chosen to treat it as duty period which is not against the rules then in force. Learned counsel for the applicant also has drawn my attention to the ruling reported in (1996) 1 SCC 296 (State of of Punjab and others vs. Shambhunath Singla & Others) wherein Supreme Court has merely held that the appellant is entitled to full salary once he is discharged by the criminal court, but this also only on a reading of the rules then in force. Another point on which the order is sought to be assailed is that the applicant is not served with notice. It was the applicant who after his acquittal in criminal case filed an application praying for reinstatement and also for treating the period as duty period. It is only on the application or petition presented by the applicant himself, the order has been passed and therefore, the order cannot be faulted for want of notice. It was the applicant who has invited the order and therefore, the order cannot be set aside on the ground that it was passed without notice. The order is only in accordance with the rules which were then in force and on merits also, I am not inclined to take a different view from that was taken by the Authorities. The application fails and the same is dismissed.”
8. It is, against the said order of the Tribunal, the petitioner filed W.P.No.30532 of 2004 and a Division Bench of this Court in the order dated 26.10.2004 dismissed the case finding that there is no reason to interfere, but only permitted the petitioner to make a representation if so desired. The order of the Division Bench is as follows:
” We do not find any reason to interfere with the order, as the Tribunal has found that the order which is impugned in the writ petition was passed after due notice and also in accordance with the Rules which were in force when the order of termination was passed and when the criminal case ended in acquittal. Hence, we do not find any reason to interfere with the order of the Administrative Tribunal. Further, it is open to the petitioner to make a representation to the state Government, if he so desires. With the liberty so granted, the writ petition stands dismissed. Consequently, the connected miscellaneous petition is also dismissed. No costs.”
9. A reference is made by the learned counsel for the petitioner to the judgment of the Division Bench of this Court in The Secretary, Vallalar Gurukulam Higher Secondary School, Vadalur, Cuddalore District vs. District Educational Officer, Cuddalore and another in W.A.No.1329 of 2000 dated 22.12.2004, but the same was based on different facts. It is true that in that case also there was a criminal proceeding which has ultimately ended in acquittal and after acquittal, it was held that the concerned individual was to be treated as not guilty of offences and directed to be reinstated and paid the salary for the period of unemployment. That case was relating to a teacher working in an aided school who was kept under suspension and the salary for suspension period was in issue and that was not a case relating to the interpretation of Fundamental Rules. But, unfortunately, in the present case, the petitioner has claimed the benefit under the Fundamental Rule which came to be introduced subsequently. Therefore, the above said Division Bench judgment is not applicable to the facts of the present case. Therefore, it is clear that the Division Bench of this Court was in entire agreement with the findings of the Tribunal and the mere permission granted to the petitioner to make a representation does not mean that the Division Bench has set aside the findings given by the Tribunal against the petitioner.
10. In such circumstances, the impugned order of the first respondent which has been passed by referring to the judgment of the Division Bench as well as the Tribunal, especially on the factual matrix that the amendment to the Fundamental Rules itself came into effect only from 1987, whereas the claim of the petitioner relates to the period from 1980 to 1983, cannot be said to be perverse or extraneous or against the Fundamental Rules in existence during the relevant period for which the petitioner makes his claim. Inasmuch as the decision of the Tribunal as confirmed by the Division Bench of this Court is totally against the petitioner, it is not possible to accept the contention of the learned counsel to the contrary, and this is not a case where this Court can interfere with the impugned order of the first respondent. The writ petition therefore fails and the same is dismissed. No costs.
Kh
To
1.The Secretary
to Government
State of Tamil Nadu
Forests and Environment Department
Fort St.George,
Chennai 600 009.
2.The Conservator of Forests
Social Forestry Circle
Salem