Judgment :- (Writ Petition, seeking certiorarified mandamus is filed by the petitioner, under Article 226 of the Constitution of India, for direction to call for the records, relating to the orders, dated 12.01.1998 and 16.09.2004, passed by the second respondent, and quash the same and also for fixing the pay scale and other relief.) S. Tamilvanan, J. The Writ petition is filed, seeking certiorarified mandamus, to call for the records relating to the final order NO.V-15014/AD.III/VM/Maj-05/097/98/59, dated 12.01.1998 and the consequent Unit service order Part-II No.286/2004 in No.E-22013/ADM-TV/SHAR/2004, dated 16.09.2004 passed by the second respondent, and quash the same and also for directing the second respondent, to fix the pay by granting all annual increments in the post of Head Constable (GD) and promote him as Assistant Sub Inspector according to his seniority with all benefits from 1997-2002 as per the order of this Hon'ble Court, dated 14.07.2004, made in W.P.No.17468 of 2003. 2. The petitioner who was serving as Head Constable in the Central Industrial Security Force Unit (Herein referred to as CISF) at Madras Port Trust was issued with a charge memo, on 01.07.1996, under Rule 34 of the unamended rule of CISF. The following article of charges were framed against him. Article of Charge-I : "CISF No.723280473 Head Constable (GD) V.Murugesan of CISF Unit, MPT, Madras is charged with gross indiscipline and negligence of duty. Head Constable / GD V.Murugesan was detailed for A shift duty on 20.05.1996 at JD-7 duty post of MPT. After completion of said duty at 1300 hrs on 20.05.1996, there was no need for him to enter the Madras Harbour again, but it is reported that HC/GD V.Murugesan was found roaming at Gate No.1 (Out Gate) of Madras Harbour at about 0130 hours on 21.05.1996. Thus, HC/GD V.Murugesan unauthorisedly entered the premises of Madras Harbour during odd hours on 21.05.1996 and found roaming at Gate No.1 (Out Gate) of MPT, Madras, Entering the protected place on his own unauthorisedly and roaming at Gate No.01 (Out Gate) are amounting to gross indiscipline and negligence of duty. Article of Charge-II : "CISF No.723280473 Head Constable / GD V.Murugesan of CISF Unit, MPT Madras is charged with neglect of duty and for having connivance with bad element. Article of Charge-II : "CISF No.723280473 Head Constable / GD V.Murugesan of CISF Unit, MPT Madras is charged with neglect of duty and for having connivance with bad element. At about 0200 hrs on 21.05.1996 a vehicle bearing Registration No. TMO-2520 loaded with 20 feet container No.TEXU 3846780 sped away from Madras Port Trust premises unauthorisedly by producing fake vehicle ticket. HC/GD V.Murugesan who was not on duty at that time, but roaming at out of Gate-I of MPT was also accompanied the bad elements in the vehicle Regn. No.TMO 2520 at about 0200 hrs on 21.05.1996. Being a member of CISF HC/GD V.Murugesan was supposed to safeguard the property of the MPT. But he failed in his bound on duty and connived with the bad elements. 3. It is seen that the petitioner herein had earlier filed a writ petition in W.P.No.11495 of 1996, seeking certiorarified mandamus, forbearing the respondents from proceeding with the departmental enquiry, pursuant to the memo, dated 22.07.1996, issued on the petitioner, till the final disposal of the connected criminal proceedings, pending on the file of the XVI Metropolitan Magistrate, George Town, Chennai and the petitioner had also obtained interim stay. As the petitioner was subsequently acquitted by the criminal court, by its Judgment, dated 31.01.1998, the said writ petition was dismissed as infructuous. The first respondent, then ordered Departmental enquiry for the alleged offence, for which he was acquitted and the enquiry officer, who conducted the enquiry, gave a finding in his report, that the Article of Charge-I was proved and Article of Charge-II was not proved. 4. Though the petitioner herein had made a representation, raising his defence and requested first respondent to drop the article of charges, the first respondent, without considering the representation, made by the petitioner, passed final order, awarding punishment of dismissal from service on 21.02.2000. Aggrieved, by which, the petitioner herein preferred an appeal against the order passed by the first respondent, before the Deputy Inspector General, the third respondent, who rejected the appeal, without considering the grounds of appeal and therefore, the petitioner filed writ petition in W.P.No.10671 of 2000, and this court, after hearing both sides, passed the order, dated 19.03.2003, as follows; "With the result, the writ petition is disposed of with liberty to the petitioner to file a proper revision before the appropriate authority. The petitioner is permitted to file the revision within a period of two weeks from the date of receipt of a copy of this order and on receipt of the revision petition, the revisional authority is directed to take it on file and dispose of the same within a period of six weeks thereafter, after giving due opportunity of hearing the petitioner. It is contended that the petitioner has been acquitted by the Criminal Court on the same two charge. The petitioner is at liberty to raise the said issue before the revisional authority." 5. Pursuant to the order passed in the writ petition, the petitioner herein preferred revision before the third respondent, which was rejected on 31.05.2003. Aggrieved by the impugned order passed by the second respondent, the petitioner again filed writ petition in W.P.No.17468 of 2003, seeking issuance of certiorarified mandamus and the writ petition was allowed by this court on 14.07.2004. Pursuant to the order, passed in the writ petition, the petitioner was reinstated in service with effect from 23.06.2003 by the second respondent, by his order, dated 16.09.2004. The second respondent, as per the impugned order, has not granted annual increment in favour of the petitioner, for the period from 1997-2002, but directed for withholding the increment for a period of two years with the effect of postponing future increment, pursuant to the order, dated 12.01.1998. Further, the second respondent has regularised the period of service of the petitioner, from 18.04.1997 to 04.08.1997, as period on leave without salary, though the petitioner had submitted medical certificate for the period from 03.05.1997 to 01.07.1997 and 02.07.1997 to 03.08.1997 and also fitness certificate, dated 04.08.1997 before the second respondent. Without considering the medical certificates, the final order, dated 12.01.1998 was passed by the second respondent. Aggrieved by the said order, the petitioner has filed this writ petition, seeking the relief stated above. 6. According to the learned counsel for the petitioner, the impugned order, dated 16.09.2004 was passed, based on the earlier order, dated 12.01.1998 and therefore, both the orders, dated 16.09.2004 and the earlier order, dated 12.01.1998 are liable to be quashed and that the impugned order awarding punishment of withholding increment for two years with cumulative effect is contrary to law and on that ground, pleaded for allowing the writ petition. 7. 7. According to the petitioner herein, he could not file appeal against the order, dated 12.01.1998, since he was subsequently dismissed from service on 21.02.2000, by the order of the second respondent. After he was reinstated in service with effect from 23.06.2003, pursuant to the order, dated 14.07.2004, passed in W.P.No.17468 of 2003, the present impugned order, dated 16.09.2004 has been passed by the second respondent, withholding the increment for two years, which will have the effect of postponing future increment. As per the impugned order, a period of 240 days from 23.05.1996 to 01.07.1997 was not considered for the purpose of increment and 109 days of O.S.L was regularised only as leave without pay and therefore, the increment was postponed from 01.09.1996 to 01.09.1997, according to the learned counsel for the petitioner, the impugned order, therefore, is arbitrary. The petitioner has further submitted that he has completed the course for promotion cadre for getting promotion as Assistant Sub Inspector, in the year 1998 and his serial number as per the list of seniority for Assistant Sub Inspector is 7751 and that the respondents have promoted similarly placed employees up to serial number 8480. In view of the order passed by the respondents, removing the petitioner from the strength of CISF, promotion was not given, though, the petitioner has been reinstated in service with effect from 23.06.2003 and according to him, he is entitled to get promotion as Assistant Sub Inspector, in view of the order, dated 14.07.2004, passed by this court in W.P.No.17468 of 2003. 8. According to the learned counsel for the petitioner, the impugned order, dated 16.09.2004, awarding punishment, withholding increment for a period of two years with the effect of postponing the future increment, is arbitrary and as such liable to be quashed. As the petitioner was dismissed from service, after the earlier order, dated 12.01.1998, passed by the second respondent, according to him, he could not prefer an appeal against the order, dated 12.01.1998. Pursuant to the order, dated 14.07.2004, passed in the writ petition, he was reinstated in service with effect from 23.06.2003, as per order, dated 16.09.2004, by the second respondent, therefore, the petitioner could challenge the orders, dated 12.01.1998. Pursuant to the order, dated 14.07.2004, passed in the writ petition, he was reinstated in service with effect from 23.06.2003, as per order, dated 16.09.2004, by the second respondent, therefore, the petitioner could challenge the orders, dated 12.01.1998. The petitioner has further stated that without considering the medical certificates produced by him, the impugned order, for withholding increment for two years with cumulative effect has been passed, and hence, the same has to be set aside. 9. Admittedly, as stated by the respondents in their counter, the impugned order, dated 12.01.1998, passed by the second respondent was not challenged by the petitioner, by way of appeal or otherwise. Therefore, we are of the considered view that the reasons stated by the petitioner that he could not prefer appeal, as he was subsequently dismissed from service, cannot be a legal defence. It is seen that the period of dismissal from service from 21.02.2000 (Afternoon) to 22.06.2003, till he was reinstated in service, has been regularised, as leave without pay and as such, we are of the view that the said period, the petitioner is not entitled to any pay or allowance, on the basis of ' No work No pay' and it has been clarified that the same would not imply any break in service of the petitioner, in terms of Rule 25 of CCS (Pension) Rules, 1972. Further, it has been decided by the impugned order that the petitioner is entitled for pay and allowance for the period from 23.06.2003 to 15.08.2004, since he was reinstated in service, with retrospective effect and as such, the period has been treated as on duty for all purpose. It is not in dispute that consequent to the reinstatement of the petitioner and restoration of pay, a sum of Rs.83,689/- was claimed as arrears of pay for the period from 23.06.2003 to 15.08.2004 and paid to the petitioner on 19.10.2004. 10. It is not in dispute that consequent to the reinstatement of the petitioner and restoration of pay, a sum of Rs.83,689/- was claimed as arrears of pay for the period from 23.06.2003 to 15.08.2004 and paid to the petitioner on 19.10.2004. 10. It is not in dispute that pursuant to the order, dated 14.07.2004, passed in W.P.No.17468 of 2003, the petitioner was reinstated in service with effect from 23.06.2003, and according to the petitioner, he is also entitled to get promotion as Assistant Sub Inspector, for which, the petitioner is seeking direction to call for the records relating to the final order No.15014/Ad.VIII/VM/Maj-05/97-98/59, dated 12.01.1998 and the consequent unit service order, dated 16.09.2004, passed by the second respondent and quash the same and to direct the second respondent to fix pay scale by granting annual increment and promote the petitioner as Assistant Sub Inspector to his seniority with all benefits from 19.07.2002. 11. As per order, dated 12.01.1998, passed by the second respondent, final order has been passed, which reads as follows : "08. In view of the above, the undersigned in exercise of powers conferred under rule 31 of CISF Rules, 1969, impose upon him the penalty of "Withholding of Increment for a period of two years which will have the effect of postponing future increments. It is also ordered that the period of his absence from 17.02.1997 to 17.04.1997 i.e., 60 days (till disposal of the main writ petition by the court) will be regularised against his eligible leave and further period of absence from 18.04.1997 till 04.08.1997, i.e., for 109 days is treated as Leave without salary (LWP). 09. No.723280473 HC/GD V.Murugesan is also informed that he can prefer an appeal petition to the competent authority ie., DIG (SZ), Chennai if he is aggrieved by the above order and may submit such appeal petition within thirty days from the date of receipt of the order." 12. Admittedly, the above order was not challenged, by way of appeal or otherwise. As per this order, the second respondent has held at paragraph number 06 of the order as follows : " 06. After considering the pros & cons of the case, I am of the considered view that the charged official intentionally overstayed from joining time for the reasons best known to him. As per this order, the second respondent has held at paragraph number 06 of the order as follows : " 06. After considering the pros & cons of the case, I am of the considered view that the charged official intentionally overstayed from joining time for the reasons best known to him. Moreover, when the Hon'ble court had dismissed the main WP of the petition on 17.04.1997 itself, he should have reported for duty st SHAR Centre, pending Writ Appeal filed by him which he did not do. Moreover, being a member of the Armed Force, he should have apprised the new Unit Commander the case and his problem if any which he failed to do. However, in order to provide proper justice in the case, the defence exhibits produced by the charged official during the course of the Departmental Enquiry were also considered, but the said documents were not of any use to him as the same appeared to have been managed. Dr.S.Periasamy, M.D. Civil Surgeon & AMA Govt. Stanley Hospital, issued Medical Certificate on 01.01.1997 only, covering the period from 03.05.1997 to 01.07.1997 "60 days rest was absolutely necessary for the restoration of his health for Viral Hepetitis." He has issued further extension certificate to him on 03.08.97 only, covering the period of 33 days again from 02.07.97 to 03.08.97 itself speaks the truth. However, Certificate of Fitness was issued on 04.08.97 by the same doctor. As such, the statement of the charged official that due to his sickness, he was unable to resume his duty at SHAR (C) cannot be relied upon." 13. Subsequently, in the appeal preferred against the order, the third respondent, Deputy Inspector General, had passed order, whereby held that both the charges framed against the petitioner herein were proved and accordingly, awarded punishment of dismissal from service on 21.02.2000. Against which, the writ petition in W.P.No.17468 of 2003 was filed and this court, after considering the materials and arguments advanced by both sides, and all other relevant aspects, allowed the writ petition, subject to certain observations. The order by this Court, dated, 14.07.2004, passed in the aforesaid writ petition reads as follows : "13. Against which, the writ petition in W.P.No.17468 of 2003 was filed and this court, after considering the materials and arguments advanced by both sides, and all other relevant aspects, allowed the writ petition, subject to certain observations. The order by this Court, dated, 14.07.2004, passed in the aforesaid writ petition reads as follows : "13. Though the petitioner is entitled to succeed in the writ petition, considering that he has not been serving or rendering any duty ever since the order of dismissal, it would be just and proper not to award backwages in his favour. The petitioner is found not guilty of the second charge only due to the fact of the two witnesses not having rendered proper evidence, one having become hostile and the other rendering conflicting evidence, even though before the enquiry, they had given statements implicating the petitioner. Therefore, while holding the petitioner not guilty of charges, the verdict cannot be stated to be a honourable acquittal of the charges and he is given only benefit of doubt. Therefore, in the interest of justice, I am inclined to hold that the petitioner will not be entitled to arrears of salary for the intervening period, namely, from the date of dismissal till 23.06.2003 being the date of filing of this writ petition. The writ petition is allowed subject to the above observation. No costs." 14. Pursuant to the order passed by this Court on 14.07.2004, the petitioner herein was reinstated and the impugned order, dated 16.09.2004 , passed by the second respondent, reads as follows : Grant of Annual Increment: Consequent upon Re-instatement of No.723280473, Head Constable (GD), V.Murugesan in Service wef: 23.06.2003 vide this office USO Pt.I No.43/2004 issued under letter No.V-14013/ADM.III CC/VM/2004/2082, Dated 14.07.2004 and CISF Hqrs., New Delhi Msg Dated 27.08.2004, the Annual Increment for the year 1996 onwards are hereby granted / regularised as under: - His pay was Rs.1,300/- wef : 01.09.1995 after granting Annual Increment for the year 1995 vide CISF Unit, MPT, Madras USO Pt.II No.276/1995, Dated 06.09.1995. - On implementation of the 5th Pay Commission, his pay was fixed at Rs.4,050/- wef : 01.01.1996, vide CISF Unit, SDSC, SHAR (S) USO Pt.II No.271/1997, Dated 22.11.1997 (DNI : 01.09.1996). - On implementation of the 5th Pay Commission, his pay was fixed at Rs.4,050/- wef : 01.01.1996, vide CISF Unit, SDSC, SHAR (S) USO Pt.II No.271/1997, Dated 22.11.1997 (DNI : 01.09.1996). Granted Annual Increment For 1997 : Rs.4,135/- wef : 01.09.1997 Increment for the year 1996 not granted, since the actual date of annual increment of 01.09.1996 postponed to 01.09.1997, due to regularisation suspension period from 23.05.96 to 17.01.97 (240 days) as NOT ON DUTY and regularisation of OSL period from 18.04.1997 to 04.08.1997 (109 Days) as Leave without Pay (LWP). Increment for the year 1998 & 1999 : The increment for the year 1998 & 1999, WITHHELD due to the punishment of "WITHHOLDING OF INCREMENT FOR A PERIOD OF TWO YEARS WHICH WILL HAVE THE EFFECT OF POSTPONING FUTURE INCREMENTS" vide USO Pt.II No.47/98, Dated 05.02.1998. Annual Increment for the year 2000, 2001 & 2002 : NOT GRANTED, since he was Dismissed from service wef : 21.02.2000. However, the Dismissal period from 21.02.2000 to 22.06.2003 is regularised as LEAVE WITHOUT PAY and he is not entitled for any pay and allowance for the above period. However, this will not imply break in service in terms of Rules 25 of CCS (Pension) Rules 1972. On Re-Instatement in Service wef 23.06.2002, His pay has been restored to Rs.4,135/- Annual Increment for the year 2003 : Rs.4,220/- wef : 01.09.2003 Annual Increment for the year 2004 : Rs.4,305/- wef : 01.09.2004 15. Challenging the aforesaid order, the present writ petition has been filed by the petitioner. 16. As contended by the learned counsel for the respondents, the second respondent has passed the impugned order, dated 16.09.2004, pursuant to the order passed by this court in W.P.No.17468 of 2003, dated 14.07.2004, which is not in dispute. Here, in the present writ petition, the petitioner has challenged the earlier order, dated 12.01.1998, whereby it was ordered by the second respondent, withholding of increment for two years, which would have the effect of postponing future increment. 17. As per the impugned order, dated 12.01.1998, the second respondent has stated that the petitioner had intentionally overstayed from joining duty for the reasons best known to him. 17. As per the impugned order, dated 12.01.1998, the second respondent has stated that the petitioner had intentionally overstayed from joining duty for the reasons best known to him. According to him, even after the dismissal of the earlier writ petition on 17.04.1997, immediately, he did not report duty at SHAR Centre and that the documents produced upon him were considered, but could not be relied upon, since Dr.S.Periasamy, Civil Surgeon, Government Stanley Hospital, issued medical certificate on 01.07.1997 only, covering the period from 03.05.1997 to 01.07.1997. As per the certificate, 60 days rest was absolutely necessary for the restoration of his health for viral Hepatitis and the Doctor issued further extension certificate to the petitioner on 03.08.1997, only covering the period of 33 days again from 02.07.1997 to 03.08.1997 and the fitness certificate was issued by the very same Doctor on 04.08.1997 and as such, the statement of the Doctor that due to sickness, he could not resume his duty at SHAR (C) could not be relied upon. The petitioner, a member of the Armed Force, being in the disciplinary service could have produced medical records, if he has been inpatient in any hospital and the detailed findings given by the second respondent in the impugned order, dated 12.01.1998 would show that the certificate produced by the petitioner was duly considered and negatived. Further, there was no appeal preferred by the petitioner, against the aforesaid order. 18. Therefore, we are of the considered view that the petitioner is not entitled to challenge the aforesaid earlier order, dated 12.01.1998 along with the impugned order, dated, 16.09.2004, passed by the second respondent in this writ petition. The learned counsel for the petitioner would state that the petitioner could not prefer an appeal against the order, dated 12.01.1998, since he was subsequently, dismissed by the order, dated 16.09.2004. We are of the considered view that it wont be a legal defence for not preferring any appeal against the order, dated 12.01.1998, since there is no bar in preferring appeal against the said order, and therefore, we could find no error or infirmity in the impugned order, passed by the second respondent, with regard to the order, dated 12.01.1998. 19. 19. This Court, by order, dated 14.07.2004, passed in W.P.No.17468 of 2003, has categorically held that the verdict, in favour of the petitioner cannot be stated to be a honourable acquittal of the charges and the petitioner was given only benefit of doubt and therefore, in the interest of justice, the court was inclined to hold that the petitioner would not be entitled to arrears of salary for the intervening period, namely from the date of dismissal, i.e., 21.02.2000 to 23.06.2003, being the date of filing of the aforesaid writ petition. By the impugned order, dated 16.09.2004, the period from dismissal from service till the filing of W.P.No.17468 of 2003, i.e., 21.02.2000 (Afternoon) to 22.06.2003, till he was reinstated in service, has been regularised, as leave without pay and the same has been clarified in the order, that it would not imply any break in service of the petitioner, in terms of Rule 25 of CCS (Pension) Rules, 1972. It has been further decided in the impugned order that the petitioner is entitled for pay and allowance for the period from 23.06.2003 to 15.08.2004 and as such the period has been treated as on duty for all purpose and further, considering the reinstatement of the petitioner and restoration of pay, a sum of Rs.83,689/- has been claimed as arrears of pay for the period from 23.06.2003 to 15.08.2004 and paid to the petitioner on 19.10.2004, the same is not in dispute. Therefore, we are of the considered view that there is no error or infirmity in the order passed by the second respondent, so as to interfere with the same, in respect of fixing the salary of the petitioner. 20. According to the petitioner, his serial number, as per the list of seniority for promotion as Assistant Sub Inspector is 7751 and similarly placed employees in his cadre upto serial number 8480 in the seniority list have been promoted by the respondents, but, he was not considered for promotion. As per the promotion of the petitioner is concerned, we are of the considered view that he has to be considered for promotion, as per his seniority, if he is otherwise eligible for the aforesaid promotion cadre. 21. With the above observation, the writ petition is dismissed. No order as to costs. Consequently, connected W.P.M.P.No.1547 of 2005 is also dismissed.