IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 05.11.2007
Coram:
The Hon'ble Mr. Justice K.CHANDRU
W.P. No.42971 of 2006
and
M.P. No.1 of 2006
S.Balasubramanian ..Petitioner
Vs.
1. The Director General of Police
Chennai 4.
2. The Superintendent of Police
Tirunelveli District.
3. The Deputy Inspector General of Police
Tirunelveli Range
Tirunelveli. ..Respondents
Petition filed for issuance of writ of Certiorarified
Mandamus calling for the records pertaining to the order
of the first respondent in Rc. No. PR.II(1)/027215/2004
dated 31.7.2004 and the second respondent in D.O. 607/04 C.
No. P3/OA.368/96 dated 19.8.2004 and Na. Ka. No.
F1/BN/65/2004 dated 11.8.2006 and quash the same and direct
the respondents to reinstate the petitioner in service
with all consequential benefits including service, monetary
benefits.
For Petitioner : Mr. M.S. Soundararajan
For Respondent : Mrs. Bhavani Subbarayan, AGP
ORDER
The petitioner challenges the order of the first
respondent dated 31.7.2004 imposing the punishment of
compulsory retirement, which was communicated by an order
dated 19.8.2004, as well as the recovery order dated
11.8.2006.
2. I have heard the arguments of Mr. M.S.
Soundararajan, learned counsel appearing for the petitioner
and Mrs. Bhavani Subbarayan, learned Assistant Government
Pleader representing the respondents and have perused the
records.
3. The petitioner was charge-sheeted under Rule 3(b)
of the Tamil Nadu Police Subordinate Service (Discipline
and Appeal) Rules. The charge against the petitioner was
that he had intimidated and intruded into the privacy of
one Santhanamariammal, wife of Shanmugam, another Police
Constable at 5.30 pm on 18.6.1983 and in furtherance of the
object of intimidation and intrusion, visited the line hut
18 K Block between 9 and 10 pm clandestinely and skulked
away. Subsequently, after conducting an enquiry, the
petitioner was given punishment of reduction in time scale
of pay for a period of two years with cumulative effect by
an order dated 27.12.1984. The petitioner challenged
the same by way of appeal dated 29.02.1985. But, however,
the third respondent Deputy Inspector General of Police
issued a suo motu revision order as to why the penalty
should not be enhanced to that dismissal and accordingly,
he was dismissed from service vide order dated 12.9.1985.
The petitioner preferred a Review Petition before the
Inspector General of Police and the penalty was set aside
and the petitioner asked to show cause as to why he should
not be dismissed from service by a notice dated 11.12.1996.
Subsequently, after getting his explanation, he was
dismissed from service on 04.3.1987.
4. As against the order of dismissal, the petitioner
moved the Tamil Nadu Administrative Tribunal by filing an
Original Application being O.A. No. 2754 of 1990 and the
said O.A. was allowed by an order dated 06.3.1992 with a
direction to the respondents to review the matter. The
respondents’ attempt to move the Supreme Court had also
failed and the S.L.P. was dismissed on 09.5.1995.
Thereafter, a show cause notice dated 06.11.1995 was given
to the petitioner to submit his explanation. The
petitioner, after submitting an explanation, also filed
another Original Application before the Tribunal being O.A.
No. 368 of 1996 challenging the show cause notice. The
Tribunal, by an order dated 30.3.2004, directed the
respondents to take a lenient view on the matter. Pursuant
to the order of the Tribunal, the petitioner sent a
representation dated 29.6.2004 to the first respondent. The
first respondent rejected his representation but, however,
imposed a penalty of compulsory retirement vide order dated
31.7.2004. The second respondent, while giving effect to
the said order, directed that the compulsory retirement
should take effect from the original date of punishment of
dismissal, viz., 23.9.1985 and, therefore, he is deemed to
have been retired with effect from 23.9.1985. In the
light of the order dated 19.8.2004 treating the petitioner
as having retired from 23.9.1985, by a further order dated
11.8.2006, the subsistence allowance paid to the petitioner
from 23.9.1985 to 31.7.2004 was directed to be recovered
from the petitioner. It is this order that is under
challenge in this writ petition.
5. For the nature of misconduct alleged against the
petitioner, there is no case warranting giving a lesser
punishment. Even the punishment of compulsory
retirement was made only taking a leniency on the
misconduct committed by the petitioner. The misconduct
alleged against the petitioner was that he outraged the
modesty of one woman, viz., Santhanamariammal, in the
absence of her husband. There is a power under Rule 15 A
of the Tamil Nadu Police Subordinate Service (Discipline
and Appeal) Rules to revise any punishment without any time
limit. Therefore, the challenge to the imposition of
punishment made in the writ petition cannot be entertained
and the writ petition is devoid of merits.
6. However, consequent to the imposition of
compulsory retirement, which is invoked as a punishment, it
is not open to the petitioner to pass the said order with
retrospective effect, viz., with effect from 23.9.1985. In
fact, originally the petitioner was imposed with the
punishment of reduction in scale of pay. But when it is
sought to be revised by invoking revisional powers, there
is no impediment for the respondent to pass an order of
compulsory retirement from service. In fact, the order
dated 31.7.2004 passed by the first respondent merely
imposes the punishment of compulsory retirement without any
retrospective effect. But, it is the second respondent,
who has modified the punishment to have retrospective
effect from 23.9.1985. Even if such an order is held to
be valid, there is no question of recovery of the
Subsistence Allowance paid to the petitioner from 23.9.1985
till 31.7.2004. The Subsistence Allowance is paid in
terms of Fundamental Rules. It is to keep the Government
employee alive so that he can defend the proceedings
effectively. Such an amount, being paid by way of
Subsistence Allowance, cannot be recovered merely because
the punishment of compulsory retirement was passed
retrospectively. There is no rule which provides
recovery of the Subsistence Allowance paid to a Government
servant.
7. In view of the above, the impugned order dated
11.8.2006 ordering recovery of a sum of Rs.1,09,918/- from
the petitioner is hereby set aside. The respondents are
directed to forbear from recovering the said amount from
the petitioner. If the amounts are already recovered
from the terminal benefits payable to the petitioner, the
respondents are directed to refund the same to the
petitioner within a period of four weeks from the date of
receipt of a copy of this order.
8. The writ petition stands disposed of in the above
terms. However, there will be no order as to costs.
Connected Miscellaneous Petition is closed.
gri
To
1. The Director General of Police
Chennai 4.
2. The Superintendent of Police
Tirunelveli District.
3. The Deputy Inspector General of Police
Tirunelveli Range
Tirunelveli.