The discretion conferred by Fundamental Rule 54 in regulating the period of absence as duty with full salary is apparent and explicit, and the claim of an employee to treat the period as duty with full salary is not a right conferred under the Fundamental Rule.

JUDGMENT :

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the order passed by the respondent herein in D.O.No.353/2012 C.No.PR.100/H1(2)/2006 u/r 3(b) dated 13.03.2012 and quash the same and consequently direct the respondent herein to treat the period of out of employment from 26.12.2005 to 03.07.2011 as duty for all purposes in accordance with Fundamental Rule 54(A).)

The order of penalty dated 13.03.2012, imposing the punishment of 'postponement of next increment for a period of 3 years and the period of postponement shall operate to postpone his future increments', is under challenge in the present writ petition.

2. The petitioner joined as Grade-II Police Constable on 09.06.1993. He was promoted to the post of Grade-I Police Constable and thereafter as Head Constable. A charge memo in P.R.100/2006, dated 28.04.2006 was issued to the petitioner under Rule 3(b) of the Tamil Nadu Police Subordinate Service (Discipline & Appeal) Rules, 1955. The charge against the petitioner was that he had absented for duty from 26.12.2005 without leave or permission for more than 21 days and thereby deserted the force. The petitioner was imposed with a punishment of compulsory retirement from service.

3. Challenging the said punishment, the writ petitioner filed W.P.No.28271 of 2008. The said writ petition was allowed and the matter was remitted back to the competent authority for taking a decision afresh on the enquiry report, after considering the reply submitted by the petitioner to the show cause notice. Consequently, a show cause notice was issued to the petitioner and the petitioner submitted his objections on the charges and findings in the enquiry report. Thereafter, the petitioner was reinstated in service on 04.07.2011 and posted to Control Room, Vellore. Thereafter, the respondent passed the impugned order dated 13.03.2012, imposing the punishment of postponement of next increment for a period of 3 years with cumulative effect. The period of out of employment from 26.12.2005 to 03.07.2011 was ordered to be treated as eligible leave including extra-ordinary leave to the extent necessary.

4. The learned counsel for the petitioner mainly contended that the order impugned, regulating the period of absence as eligible leave, is in violation of Fundamental Rules 54(1) and 54(3). Once the Government Servant who has been dismissed, removed or compulsorily retired, has been reinstated as a result of appeal or review, he is entitled for salary for the period of absence. Relying on the said Fundamental Rules, the learned counsel reiterated that the period of absence from the date of punishment of compulsory retirement to the date of reinstatement is to be regulated as duty with full salary.

5. The learned Additional Government Pleader appearing on behalf of the respondent objected the said contention by stating that the writ petitioner was not fully exonerated from the allegations. He was reinstated in service pursuant to the order of the High Court. Accordingly, a fresh show cause notice was issued and the petitioner submitted his explanation. The authorities considered the materials available on record and imposed the punishment of postponement of next increment for 3 years with cumulative effect. In view of the fact that the petitioner was not fully exonerated from the charges, the intervening period of absence was treated as eligible leave. That apart, the petitioner was granted with lesser punishment based on the benefit of doubt and he was not completely exonerated from the charges. Thus, there is no infirmity in respect of the impugned order.

6. Let us look into the spirit of Fundamental Rule 54. Rule 54(1) contemplates that "when a Government servant, who has been dismissed, removed or compulsorily retired, is reinstated as a result of appeal or review or would have been so reinstated (but for his retirement or superannuati