Rule 29 of the Fundamental Rules of the Tamil Nadu

Swaminathan vs The Superintendent Of Police on 18 August, 2009

DATE: 18-08-2009
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.391 of 2007
(O.A.No.5606 of 2001)
Swaminathan .. Petitioner.
Versus
1.The Superintendent of Police,
Sivaganga District.
2.The Deputy Inspector General of Police,
Ramanathapuram.
3.The Inspector General of Police,
(Law and Order), South Zone, Madurai-2. .. Respondents.
Prayer: Original Application No.5606 of 2001 filed before the Tamil Nadu Administrative Tribunal, on abolition, transferred to the file of this Court and renumbered as Writ Petition No.391 of 2007, seeking for a writ of Certiorari to call for the records of the respondents 1 to 3 in connection with the impugned orders passed in PR.No.97/2000, dated 23.11.2000, C.No.B1/Appeal01/2001, dated 18.1.2001 and C No.A1/674/2001 PR Review 58/2001, dated 31.5.2001, respectively and quash the same. For Petitioner : Mr.K.Venkatramani Senior Advocate
for Mr.R.Dinesh Kumar
For Respondents : No Appearance
O R D E R
Heard the learned counsel appearing on behalf of the petitioner. There is no appearance on behalf of the respondents.
2. The brief facts of the case are as follows:
The petitioner had entered the service, as a directly recruited Police Constable, on 1.8.1984, in the Ramanathapuram East District Armed Reserve. He was transferred to the Taluk Police in the year, 1986. He was promoted as Grade I Police Constable in the year, 1997. On 15.3.2000, the petitioner was working as Grade I Police Constable in Thirupachethy Police Station in Sivaganga District. From 15.3.2000 to 18.3.2000, the petitioner had gone on casual leave with the permission of the Inspector of Police. Earlier, on 14.3.2000, he was directed to attend Treasury duty at Sivaganga. On 19.3.2000 he could not join the duty due to ill health. Therefore, the petitioner had submitted a leave application, along with the medical certificate. In spite of submitting an application for leave, on medical grounds, the petitioner was declared as a deserter. Thereafter, the petitioner was not taken back on duty. He was served with a charge memo alleging that he had deserted the force, without leave or permission, continuously, for a period of 21 days, from 15.3.2000, in P.R.No.97/2000.
3. The petitioner had denied the charges alleged against him. However, an enquiry was conducted against the petitioner based on the alleged charges. In spite of the explanation submitted by the petitioner, along with the medical certificate, the enquiry officer had held that the charges levelled against the petitioner had been proved. The enquiry report had been submitted to the disciplinary authority. A copy of the enquiry report had been furnished to the petitioner and he was asked to submit an explanation. However, the disciplinary authority, without considering the explanation submitted by the petitioner, had imposed the punishment of compulsory retirement from service, by an order, dated 23.11.2000.
4. Challenging the said order, dated 23.11.2000, passed by the first respondent herein, the petitioner had preferred an appeal to the second respondent. The second respondent had rejected the appeal of the petitioner by an order, dated 18.1.2001. Thereafter, the petitioner had preferred a review to the third respondent. The third respondent had set aside the order of compulsory retirement and had ordered the reinstatement of the petitioner in service. However, he had modified the order of punishment imposed on him earlier to one of reduction of his rank, from Grade I to Grade II, by an order, dated 31.5.2001, without specifying the period for which the order of reduction would be in force.
5. The main contention of the learned counsel appearing for the petitioner is that the punishment of reduction in rank, imposed on the petitioner, by the order of the third respondent, dated 31.5.2001, is not in accordance with the Fundamental Rules of the Tamil Nadu Government and therefore, it is liable to be set aside. The third respondent, while imposing the punishment of reduction in rank, ought to have stated the period for which the punishment shall be effective and as to whether on restoration the period of reduction shall operate to postpone future increments and if so, to what extent. Rule 29 of the Fundamental Rules reads as follows: "29. If a Government servant is reduced as a measure of penalty to a lower service, grade or post or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether on restoration, the period of reduction shall operate to postpone future increments and if so, to what extent."
6. Further, the `Rulings' in Rule 29 read as follows:
"(1)(a) Every order passed by a competent authority imposing on a Government servant the penalty of reduction to a lower stage in a time scale should indicate- (i) the date from which it will take effect and the period (in terms of years and months) for which the penalty shall be operative;
(ii) the stage in the time-scale (in terms of rupees) to which the Government servant is reduced; and
(iii) the extent (in terms of years and months), if any, to which the period referred to at (i) above should operate to postpone future increments.
The reduction to a lower stage in a time-scale is not permissible under the rules either for an unspecified period or as a permanent measure. Also, when a Government servant is reduced to a particular stage, his pay will remain constant at that stage for the entire period of reduction. The period to be specified under (iii) should in no case exceed the period specified under (i) (b) The question as to what should be the pay of a Government servant on the expiry of the period of reduction should be decided as follows:---
(i) If the order of reduction lays down that the period of reduction shall not operate to postpone future increments, the Government servant should be allowed the pay which he would have drawn in the normal course but for the reduction. If, however, the pay drawn by him immediately before reduction was below the efficiency bar, he should not be allowed to cross the bar except in accordance with the provisions of Fundamental Rule 25. (ii) If the order specifies that the period of reduction was to operate to postpone future increments for any specified period, the pay of the Government servant shall be fixed in accordance with (i) above but for treating the period for which the increments were to be postponed as not counting for increment."
7. It has also been submitted that the Government of Tamil Nadu had issued a communication, dated 21.5.2002, in Letter No.26625/F.R.I/2002-1, Personnel and Administrative Reforms (F.R.I) Department, Secretariat, Chennai, to All the Secretaries to Government, Heads of Departments, including all District Collectors, District Judges and Chief Judicial Magistrates, which reads as follows: "In the case filed before the Tamil Nadu Administrative Tribunal, Chennai, it is noticed that while taking disciplinary action under the Tamil Nadu Civil Services (Discipline and Appeal) Rules against a Government Servant, the authority ordering the punishment has awarded the punishment of reduction to the substantive post held by the Government servant permanently. The order was challenged by the applicant in the Tamil Nadu Administrative Tribunal. The Tamil Nadu Administrative Tribunal has observed that reversion can be ordered by way of punishment; if it is made on a permanent measure, it would amount to double punishment; there is no scope for imposition of such a punishment as per provisions under Tamil Nadu Civil Services (Discipline and Appeal) Rules read with the provisions under F.R.29.
2. I am, therefore, to state that if a Government servant is reverted as a measure of penalty to a lower service, grade or post or to a lower stage in his time scale, the authority ordering such reduction should specify the period for which the reduction shall be operative as required under Rule 29 of F.R. It is to be noted that the reduction to a lower service, grade or post or to a lower stage in time scale, for any unspecified period or as a permanent measure is not permissible under the relevant Rules.
3. I am also to request you to ensure that such mistake does not occur while considering for the imposition of punishment like reduction to a lower rank, stage in future." In such circumstances, the order passed by the third respondent, dated 31.5.2001, cannot be sustained in the eye of law.
8. Even though the averments and the allegations made by the petitioner have been denied in the reply filed on behalf of the respondents, the specific issue, with regard to Rule 29 of the Fundamental Rules of the Tamil Nadu Government, raised by the learned counsel for the petitioner has not been dealt with, on merits. However, it has been admitted that, while imposing the punishment of reduction in rank imposed on the petitioner, the period for which the punishment would operate has not been mentioned. It has been further stated that a lenient punishment has been imposed on the petitioner considering various factors, including the past records relating to his service. As such, the present writ petition is liable to be dismissed, as devoid of merits.
9. In view of the submissions made by the learned counsel appearing for the petitioner and the averments made on behalf of the respondents and on a perusal of the records available, this Court is of the considered view that, while imposing the punishment of reduction in rank, by an order passed by the third respondent, dated 31.5.2001, the period for which the punishment would be in operation ought to have been mentioned, in accordance with Rule 29 of the Fundamental Rules of the Tamil Nadu Government. Since the main contention raised by the learned counsel for the petitioner, with regard to the application of Rule 29 of the Fundamental Rules of the Tamil Nadu Government to the present case, has not been met by the respondents, in the reply affidavit filed on their behalf, the order of the third respondent, dated 31.5.2001, is set aside and the matter is remitted back to the third respondent to pass appropriate orders, on merits and in accordance with law, taking into consideration Rule 29 of the Fundamental Rules of the Tamil Nadu Government, the Rulings thereon and the Letter No.26625/F.R.I/2001-1, dated 21.5.2002, within a period of twelve weeks from the date of receipt of a copy of this order. The writ petition is disposed of with the above directions. No costs.