BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17/08/2011 CORAM THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.(MD)No.1061 of 2008 P.Mani ... Petitioner Vs. Senior Divisional Manager, Life Insurance Corporation of India, Tirunelveli. ... Respondent PRAYER Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order in ref.P & IR, dated 24.05.2007 issued by the respondent in so far as it refuses to treat the period of absence of the petitioner from 30.09.2001 to till 4.6.2007 as duty, and quash the same and direct the respondent herein to treat the period from 30.09.2001 to till 5.6.2007as duty and pay the salary and other monetary and attendance benefits for the relevant period to the petitioner. !For Petitioner ... Mr.F.Deepak ^For Respondent ... Mr.C.Godwin :ORDER
The petitioner has approached this court, with a prayer, for issuance of a
writ, in the nature of certiorari, to quash the impugned part of order, vide
which, the benefit of back-wages and salary, from the date of termination, till
reinstatement has been denied to the petitioner.
2.The petitioner was working as ‘Record Clerk’ with the respondent
Insurance Corporation, and on account of his involvement in a murder case, he
was placed under suspension. The petitioner was convicted by the learned
Sessions Judge and his conviction was upheld upto the Hon’ble High Court.
3.In view of the conviction of the petitioner, by the Sessions Judge,
petitioner was removed from service for the conduct leading to his conviction.
The petitioner preferred an appeal against the decision of this Court before the
Hon’ble Supreme Court of India. The Hon’ble Supreme Court, by giving benefit of
doubt, acquitted the petitioner of the charges.
4.The petitioner, on acquittal, approached the respondent for
reinstatement with continuity of service with all consequential benefits. The
request of the petitioner was accepted and he was ordered to join duty, however,
the period from the date of his removal, till realization was ordered to be
treated as “The period not spent on duty”, i.e., Dies non.
5.The learned counsel for the petitioner has challenged the impugned
order, by contending that the order, on the face of it, arbitrary, as on
account of acquittal, the very basis of his removal had ceased to exist,
therefore, the petitioner is entitled to reinstatement with all consequential
benefits.
6.It is also the case of the petitioner, that he was always willing to
work and it was the respondent, who removed him from service, on account of his
conviction by the court.
7.The writ is opposed by the learned counsel for respondent, by placing
reliance on Regulation 38, which has a statutory force of law.
8.The Regulation 38, governing service condition of the petitioner reads
as under:-
“Treatment of the Period of Suspension:-
38.When the suspension of an employee is held to be unjustified or not
wholly justified; or when an employee who has been dismissed, removed and
suspended is reinstated, the disciplinary, appellate, or reviewing authority, as
the case may be whose decision shall be final, may grant to him for the period
of his absence from duty-
(a)if he is honourably acquitted, the full pay and allowances which he
would have been entitled to if he had not been dismissed, removed or suspended,
less the subsistence allowance;
(b)if otherwise, such proportion or pay and allowance as the disciplinary,
appellate or reviewing authority may prescribe.
In a case falling under clause (a), the period of absence from duty will be
treated as a period spent on duty. [in a case falling under clause (b), the
period of absence shall not be treated as a period spent on duty, but the
disciplinary, appellate or the reviewing authority may, at its discretion, grant
leave for the period of extent admissible to the employee under the rules; any
period of absence which has not been treated as period spent on duty or on leave
shall not count as service for any purpose under these Regulations but will not
constitute break in service].
No order passed under this regulation shall have the effect of compelling any
employee to refund the subsistence allowance payable under regulation 31.”
9.It is not in dispute that the petitioner has not been acquitted
Honourably, but on benefit of doubt. The impugned order, therefore, is, in
consonance with the statutory regulation, governing the service condition of the
petitioner, which does not call for any interference by this court.
10.No merit. “Dismissed”.
11.No costs.
er