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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
A. Stanely – Appellant
Versus
The Commissioner of Police, Avadi Commissionerate, Chennai & Another – Respondents
W.P. No. 30886 of 2022
Decided On : 08-08-2023
Fundamental Rules - Regularisation of Absence Period - Rule 54-A(3) - Summary of Acts and Sections: Rule 54-A(1), Rule 54-A(2)(ii), Rule 54-A(3), Rule 54(5) - The court discussed the application of Fundamental Rule 54-A(3) in regularizing the period of absence from duty and emphasized that once the punishment of removal from service is set aside by the Court of Law, Rule 54-A(3) has to be invoked. The court highlighted the specific provisions of the statute and their application in determining the regularisation of absence period, emphasizing that the impugned order was unsustainable in the eye of law due to the failure to apply Rule 54-A(3).
Fact of the Case:
The petitioner, a police constable, was removed from service due to a criminal case but reinstated by the court with a direction to treat the absence period as leave. The petitioner sought to regularize the absence period as duty for continuity of service.
Finding of the Court:
The court found that the impugned orders were unsustainable in the eye of law as the specific Rule 54-A(3) of the Fundamental Rules should have been applied to treat the absence period as duty for continuity of service.
Issues: The main issue was the regularisation of the absence period as duty for continuity of service, despite the petitioner not being entitled to any backwages.
Ratio Decidendi: The court held that once the punishment of removal from service is set aside by the Court of Law, Rule 54-A(3) has to be invoked to treat the absence period as duty for continuity of service, as provided by the specific provisions of the statute.
Final Decision: The impugned orders were quashed, and the respondents were directed to treat the period of absence as duty only for the purpose of continuity of service, with a reaffirmation that the petitioner is not entitled to any backwages.
JUDGMENT
(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records in connection with the impugned order passed by the 2nd respondent in Rc.No.L.1/(2)/445/10609(A)/2016 in WZO.No.397/2016, dated 15.06.2016, and the impugned rejection order passed the 1st respondent in Rc.No.PR.I/286/12475/APC/2022, dated 29.10.2022, and quash the same and to further direct the respondents herein to treat the out of employment period from 23.01.1999 to 16.11.2014 as duty for all purposes except back wages as per the Fundamental Rule 54-A(3).)
1. This writ petition has been filed challenging the order passed by the 2nd respondent, dated 15.06.2016, and the rejection order passed the 1st respondent, dated 29.10.2022 and to direct the respondents herein to treat the out of employment period from 23.01.1999 to 16.11.2014 as duty for all purposes except back wages as per the Fundamental Rule 54-A(3).
2. It is the case of the petitioner that he joined the service as Grade-II Police Constable on 25.10.1984 and was promoted as Grade-I Police Constable and Head Constable in the year 2021. In the year 1999, he was implicated in a criminal case for the offences under Sections 341, 326, 427 IPC r/w. Section 4(1)(J) of TNPPD Act and subsequently, departmental proceedings were initiated against the petitioner and ultimately, he was removed from service in the departmental proceedings, challenging which the petitioner filed a writ petition in W.P.No.29189 of 2008 before this Court. This Court, by its order dated 28.11.2013 in W.P.No.29189 of 2008, set aside the punishment of removal from service and directed the respondents to reinstate the petitioner into service, treating the absence period as leave available to his credit. Though this Court held that the petitioner is not entitled to get any monetary benefits, it is the contention of the petitioner that he is entitled for the service benefits like continuity of service, seniority, etc. It is the further contention of the petitioner that the interregnum period has to be regularised as per Rule 54-A(3) of Fundamental Rules, however, the respondents, relying upon the wrong provisions, treated the out of employment period as nonduty period. Aggrieved by the same, the petitioner has filed the present writ petition for a direction to the respondents to treat the out of employment period as duty period with continuity of service, though the petitioner is not entitled to claim any backwages.
3. A counter affidavit has been filed to the effect that, while allowing the writ petition filed by the petitioner in W.P.No.29189 of 2008, this Court has directed the respondents to treat the period of absence from 23.02.1999 as leave available to the credit of the petitioner. Hence, the claim of the petitioner to treat the period of absence as duty period, is legally unsustainable. It is stated that the out of employment period from 23.02.1999 to 16.11.2014 has been settled with eligible leave as follows :
i. 23.02.1999 to 13.04.1999 – 50 days as E.L. (PA)
ii. 14.04.1999 to 12.07.1999 – 90 days as UEL (PA)
iii. 13.07.1999 to 16.11.2014 – 5607 days as LWP (PA) Relying on the counter affidavit, it is the contention of the learned Additional Government Pleader that, since the period of absence has already been settled as per the directions of this Court, the prayer in the present writ petition cannot be sustained in the eye of law.
4. Learned Senior Counsel appearing for the petitioner mainly relied upon Rule 54-A(3) of Fundamental Rules, which makes it clear that, even if the backwages are not payable, the period of absence shall be treated as duty for all purposes. If it is treated as duty, the petitioner is entitled to continuity of service, though he is not entitled to backwages as ordered by this Court. Hence, the learned counsel contended that the impugned order has been passed without
The main legal point established in the judgment is that once the punishment of removal from service is set aside by the Court of Law, Rule 54-A(3) of the Fundamental Rules has to be invoked to treat....
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 fu....
Petitioner without assigning any reasons and same amounts to clear discrimination and same is in clear violation of Article 14 of Constitution of India.
Fundamental Rule 54-A(3) clearly stipulates that if the dismissal, removal or compulsory retirement of a Government servant is set aside by the Court on merits of the case.
Employment and service matter - Wages - No substantial difference between Rule 54 and Rule 54-A of Fundamental Rules, except that in one case, reinstatement is in consequence of an order made in depa....
A public servant acquitted of criminal charges is entitled to have their representation for regularisation of the period of absence from service considered by the employer in accordance with applicab....
Even though there is no express requirement in Fundamental Rule 54[3] for giving an opportunity to employee before passing an order, giving of such an opportunity is implicit in the exercise of power....
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