G.Babu, v. The Chief Security

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 16.04.2018

CORAM

THE HON'BLE MR. JUSTICE V.PARTHIBAN W.P.No. 23544 OF 2012 G.Babu

...Petitioner

Vs.

1. The Chief Security Commissioner Railway Protection Force, Southern Railway, Chennai 600 003.

2. The Senior Divisional Security Commissioner Railway Protection Force, O/o.Senior Divisional Security Commissioner Southern Railway, Chennai 600 003.

... Respondents Prayer:- Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records relating to the orders of the 2nd respondent made in his proceedings in No.M/XP/227/28/93, dated 11.08.2008 as confirmed by the order of the 1st respondent dated 04.12.2008 and again rejecting the revision by the second respondent dated 26.10.2010 made in his proceedings No.M/XP.227/28/93 and quash the same and direct the respondents to effect the modified order of punishment of stoppage of increment for a period of three years with effect from 02.09.1993 with all consequential benefits.

For Petitioner : Mr.A.S.Kaizer For Respondents: Mr.C.V.Ramachandramurthy for R1 and R2

O R D E R

The prayer in the writ petition is for issuance of a writ of certiorarified mandamus calling for the records relating to the orders of the 2nd respondent made in his proceedings in No.M/XP/227/28/93, dated 11.08.2008, as confirmed by the order of the 1st respondent dated 04.12.2008 and again rejecting the

revision by the second respondent dated 26.10.2010, made in his proceedings No.M/XP.227/28/93, and quash the same and direct the respondents to effect the modified order of punishment of stoppage of increment for a period of three years with effect from 02.09.1993 with all consequential benefits.

2. The petitioner was originally working as a Constable in the Railway Protection Force in the year 1997. On 15.12.1992 the petitioner was issued with a charge memo for misconduct said to have been committed by him. An enquiry was conducted and based on the enquiry report, an order of dismissal was imposed on the petitioner on 02.09.1993. Appeal filed against the order of dismissal was rejected on 11.08.1995 and further revision petition against the appellate order was also rejected. Aggrieved by the above orders, the petitioner had approached this Court in W.P.No.17643 of 1997 and the writ petition was disposed of by this Court on 21.10.2005.

The learned Judge of this Court has partly allowed the writ petition by modifying the punishment of dismissal from service as one that of "stoppage of increment for a period of three years with cumulative effect". The learned Judge has also directed the respondents to reinstate the petitioner, at any rate, not later than the period of 30 days from the date of receipt of a copy of that order and also stated that the petitioner is not entitled for any back wages, however, the period of non employment had to be treated as continuous service and the same shall accrue to his future service benefits.

3. Challenging the order, both the petitioner as well as the respondents filed writ appeal in W.A.No.742 of 2007 and W.A.No.2325 of 2005 respectively. The Division Bench of this Court, by common judgment dated 22.02.2008, dismissed both the appeals and thereby confirmed the order of the learned Single Judge, dated 21.10.2005. Thereafter, in compliance of the order of the learned single Judge, an order was passed on 12.05.2008 reinstating the petitioner into service. Seniority was also fixed on the basis of his continuous service from the date of dismissal of his service.

4. Thereafter, by order dated 11.08.2008 the second respondent imposed a penalty of stoppage of increment for a period of three years with cumulative effect as directed by this Court in W.P.No.17643 of 1997 dated 21.10.2005. However, the order of punishment directs that the order will take effect from the date of next date of increment as fixed as per the sixth pay Commission. The effect of the order was that the punishment will start from the future date i.e., after the order was passed by the second respondent on 11.08.2008 and not from the date of dismissal from the service.

5. It appears that having aggrieved by imposition of the punishment contrary to the orders passed by this Court in the aforesaid writ petition an appeal was preferred by the petitioner to the first respondent and the same was rejected by order dated 04.12.2008. According to the rejection order, the punishment imposed in terms of law of the Railway Board letter, dated 03.10.1996. Against which, a revision was filed by the petitioner and the second respondent by order dated 26.10.2010 rejected the revision petition stating that the orders passed by the authority rejecting the claim of the petitioner were valid. These orders are once again put to challenge in this writ petition.

6. The learned counsel for the petitioner submitted that once the Court set aside the order of punishment, the authority ought to have passed the modified penalty and ought to have given effect such punishment from the date of dismissal of service of the petitioner and they cannot impose the penalty from future date. It is to be noted that any punishment is modified in pursuance of the order of the Court, the same shall give with effect from the original order of penalty and punishment cannot be imposed from future date which means that the direction passed by this Court is not properly complied with by the respondent and the punishment which is modified by this Court, is not implemented in its letter and spirit. Such future effect to the date of punishment is contrary to the order passed by this Court.

7. Per contra, the learned counsel for the respondents would submit that in terms of Railway Board letter dated 03.10.1996 the penalty once modified, will take effect from the date when it is modified and there was nothing wrong in such order being passed by the authority and therefore, the same does not call for any interference by this Court.

8. At this stage, the learned counsel for the petitioner would submit that the Board letter relied on by the respondents, is applicable only in the case where the punishment is reviewed or modified by the department and the same would not be applied in case where the Court modified the order of penalty and consequently the department has also given the service benefits. The learned counsel for the petitioner would also place reliance on the order passed by the Hon'ble Supreme Court of India reported in (2015) 2 Supreme Court Cases 610 in the case of Union of India and others Vs P.Gunasekaran in which the Hon'ble Apex Court has held as follows:- "25. The last contention is with regard to date of effect of the punishment. According to the

respondent, even assuming that compulsory retirement is to be imposed, it would be only with effect from the date of order viz., 28.02.2000. We are unable to appreciate the contention. the respondent stood dismissed from service as per order dated 10.06.1997. It was that punishment which was directed to be reconsidered. Consequent thereon only, the punishment was altered/substituted to compulsory retirement. Necessarily, it has to be from the date of dismissal from service viz., 10.06.1997 ".

9. The learned counsel would submit that the above observation of the Hon'ble Supreme Court would squarely apply to the present case.

10. This Court considered the rival submissions of the counsels appearing on either side.

11. This Court finds a considerable force in the contention put forth by the learned counsel for the petitioner that once this Court thought fit to modify the penalty and altered the quantum of punishment, namely dismissal of service and modified the same with that of stoppage of increment, it ought to be taken that such punishment shall be given effect to, from the date of dismissal from service of the petitioner and cannot be imposed on any future date as insisted by the respondents herein. The stand of the respondents that in terms of the Board letter dated 03.10.1996 any modification with regard to penalty should take effect from the date of issue of the order also cannot be appreciated by this Court.

In this case, the Court has modified the penalty imposed on the petitioner and the Court has further directed stating that the period of non employment should be treated as continuous service and should be counted for the purpose of all benefits and also denied the back wages to the petitioner for the said period. In such event, for all practical purposes, it should be taken that the petitioner was deemed to have been in service from the date when he was dismissed from the service, in which event, any punishment or penalty, which is passed in pursuance of the direction of this Court, must take effect only from the date of original order of dismissal of the petitioner from service and not from any other date. Any other conclusion in this regard cannot be entertained or valid.

12. For the above said reasons this Court is of the considered view that the petitioner has made out a clear case for grant of relief. In view of the same the impugned orders dated 11.08.2008 and 26.10.2010 in No.M/XP/227/28/93 are set aside and the respondents are directed to give effect to the

modified order of punishment for stoppage of increment for a period of three years from 02.09.1993 onwards with cumulative effect and grant the petitioner all consequential benefits. On such modification of the penalty giving effect from 02.09.1993, the respondents are directed to pass fresh orders in this regard. Indicating the date of effecting the order of punishment and grant all other benefits that may be admissible in this regard to the petitioner and the order shall be passed by the respondents within a period of eight weeks from the date of receipt of a copy of this order. Accordingly this writ petition is allowed. No costs.

Sd/- Assistant Registrar(CS IX) //True Copy// Sub Assistant Registrar dpq To

1. The Chief Security Commissioner Railway Protection Force, Southern Railway, Chennai 600 003.

2. The Senior Divisional Security Commissioner Railway Protection Force, O/o.Senior Divisional Security Commissioner Southern Railway, Chennai 600 003.

+1cc to Mr.C.V.Ramachandramurthy, Advocate Sr.28751 +1cc to Mr.A.S.Kaizer, Advocate Sr.28950 W.P.No. 23544 OF 2012 srg 28/06/2018