P.S. Vasanthan vs The State of Tamil Nadu

G. Rajasuria, J.—The petitioner filed Original Application in O.A. No. 2127 of 1997 before the Tamil Nadu Administrative Tribunal;

consequent upon its abolition, the said Original Application was transferred to this Court and re-numbered as W.P.10773 of 2005, to direct the

respondents herein to (i) extend the benefits of the judgment dated 10.05.1996 in O.A. No. 470 of 1989 and T.A. No. 337 of 1989 and in

consequent direction to set aside the order of termination in P.R. No. 33 of 1984 dated 17.04.1985, (ii) reinstate the petitioner in service, with

continuity of service, (iii) pay full backwages from the date of dismissal till today.

Heard both sides.

The nutshell facts which are absolutely necessary and germane for the disposal of this writ petition would run thus:

Indubitably and indisputably, the petitioner herein was working as Driver P.C.564 in the Tamil Nadu Special Police, II Battalian, Avadi, Madras.

While so, he was served with a charge memo on 21.08.1994 implicating him to the effect that on 05.07.1994, during evening time, in response to

the request made by his higher official, the Motor Transport Officer by name, Arumugam, the petitioner herein purchased food items such as

mutton, bread and bananas; while he was returning back to the camp concerned wherein the said Arumugam was staying, the driver P.C. No.

477, Ponniah, P.C. No. 180 Vadivelu, stopped the petitioner and obtained the food items from him and urinated it and handed it over to the writ

petitioner who in turn, knowing the factum of the food items having been contaminated by urine, handed it over to the said Arumugam who ate it

unknowingly.

Thereafter, the whole untoward incident came to limelight and the charge memo was issued as against all the aforesaid three police personnel

including the writ petitioner after conducting the preliminary enquiry. During regular oral enquiry, the witnesses were examined on the side of the

disciplinary authority and ultimately, the enquiry officer gave the report to the effect that the charges were proved as against all the three officials

concerned. Without serving the copy of the enquiry report and calling for their explanation, the disciplinary authority concerned issued termination

order. The appeal and review were filed by all the three persons, but those were dismissed. The two Police personnel namely, driver P.C. No.

477, Ponniah, P.C. No. 180 Vadivelu, preferred joint Original Application before the Administrative Tribunal which by its common order in O.A.

No. 470 of 1989, was pleased to pass order as under:

Therefore, in the facts and circumstances of the case, we consider that the impugned orders passed against the applicants in O.A.470 of 1989 and

T.A.337 of 1989 are not sustainable in law and as such we quash the order of the 4th respondent in P.R. No. 34 of 1985 and P.R. No. 32 of

1985 dated 17.04.1985 and confirmed by the 3rd respondent in Appeal/21/85 dated 1-8-85 and further confirmed by the 2nd respondent in

D.Dis. No. 36542/AP.2/86 and also the order of the Ist respondent in Lr. No. 160855/Pol.VIII/86-1 dated 11-11-1989 and direct the

respondents to reinstate the applicants in service within two months from the date of receipt of this order or a copy thereof. The applicants are not

entitled to any backwages for the period they were out of employment from the date of dismissal till the date they filed these two applications

before this Tribunal. But they will be entitled to full pay and allowance for the period from the date of their filing this application before this Tribunal

i.e, 17.2.1989 and 31.3.89 respectively till their reinstatement. However, the entire period from the date of their dismissal till the date of

reinstatement shall be taken into account as duty period for the purpose of continuity of service and other service and pensionary benefits. The

applications are ordered accordingly. There will be no order as to costs.

However, it is therefore clear that other than the petitioner, those two persons were exonerated from the charges and they enjoyed the facility of

reinstatement with some benefits.

The petitioner herein who as per the version of the learned Counsel for the petitioner, due to impecunious and penurious circumstances, could

not join with the other two and get the benefit of the order of the Administrative Tribunal; and hence, separately O.A. No. 2127 of 1997 was filed

seeking the same relief to be extended and accorded to the petitioner herein.

No counter has been filed on the respondents'' side.

The point for consideration is as to whether the petitioner herein could be exonerated from the charges and whether he is entitled for the

consequential benefits as prayed by him?

It would not be out of context to indicate herein that as against the aforesaid order of the Administrative Tribunal dated 10.05.1996, the

Government preferred SLP No. 4625-4626 of 1997, which was came to be dismissed by the Apex Court vide order dated 08.07.1997. The

operative portion of it, would run thus:

The special leave petitions are dismissed both on the ground of unexplained inordinate delay and on merits.

It is therefore crystal clear that the order of the Tribunal so far those two persons are concerned became final.

The learned Counsel for the writ petitioner would entreat and implore, pray and appeal that the same treatment might be meted out to the

petitioner herein who even according to the disciplinary authority, was only the person who simply carried that contaminated food to the said

Arumugam and gave it to him. He would also develop his argument that once the actual perpetrators of the delinquent act were exonerated, it

would be illogical to allow the continuance of the punishment as against the writ petitioner alone.

I could see considerable force in the submission made by the learned Counsel for the petitioner and no contrary argument so as to torpedo it,

is forthcoming from the side of the Government Pleader.

It is crystal clear from the discussions of the Administrative Tribunal that the enquiry report was not furnished to the writ petitioner herein. The

question might arise, if that be so, why can''t the enquiry be ordered to be continued from that stage onwards. The fact remains that the charge

memo was issued as early as on 21.08.1994 and the termination order was issued on 17.04.1985. As such, after enormous delay, it would not be

in the interest of justice to order the continuance of the enquiry from the stage of furnishing the copy of the enquiry report to the writ petitioner and

calling for his explanation etc. Top it all, those two persons who were proceeded against along with the writ petitioner, were exonerated from the

charges and they are enjoying the benefit of reinstatement and continuance in service and in such a case, there would be no rhyme or reason in

denying such facility being accorded to the writ petitioner herein.

Accordingly, I am of the firm view that the finding of guilt as against the petitioner and the punishment imposed are liable to be set aside and

accordingly, the same are set aside.

At this juncture, I am of the considered opinion that even backwages from the date of petition till reinstatement cannot be ordered in view of

the recent decisions of the Honourable Apex Court in (i) U.P.S.R.T.C. Vs. Mitthu Singh, and (ii) Banshi Dhar Vs. State of Rajasthan and Another,

. Inasmuch as mostly on technicalities only, this case has come to be decided, I do not think that ordering backwages is warranted. Accordingly,

reinstatement is ordered without backwages. However, the entire period from the date of their dismissal till the date of reinstatement shall be taken

into account as duty period for the purpose of continuity of service and other service and pensionary benefits.

In the result, this Writ petition is disposed of. No fcosts.