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2010 DIGILAW 1930 (MAD)

K. Kuppusamy v. The State of Tamil Nadu

2010-04-22

H.L.GOKHALE, V.DHANAPALAN

body2010
Judgment :- V. Dhanapalan, J. 1. We heard Mrs. Selvi George, learned Counsel appearing for the Appellant and Mr.S.N. Kirubanandan, learned Special Government Pleader appearing for the Respondents. 2. This Writ Appeal has been directed against the order of the learned Single Judge of this Court made in W.P.No.20320 of 2008, dated 12.01.2010. 3. The Appellant joined as a Forester in the Respondent-Department on 29.1.1980. While he was working as such in the Extension Forestry Division I at Salem, on 9.7.1980 he was placed under suspension on the ground that he was convicted by the Sessions Court, Salem for the charge under Section 302, IPC. On 15.10.1980, a show cause notice was issued by the Divisional Forest Officer to the Appellant, calling upon him to show cause as to why he should not be dismissed from service. The Appellant submitted his explanation, stating that he preferred an Appeal before the High Court of Madras against the judgment of conviction and the High Court suspended the sentence pending disposal of the Appeal. However, by order, dated 4.9.1981 the District Forest Officer terminated the services of the Appellant with effect from 9.8.1980. Aggrieved by the said order of the District Forest Officer, the Appellant preferred an Appeal before the Conservator of Forests. In the meanwhile, the Appellant has been acquitted in the Criminal Appeal filed by him before this Court on 30.4.1982. Thereafter, the Appellant was reinstated in service by the Second Respondent on 22.9.1982 and he joined as Forester on 1.10.1982. In the order of reinstatement, it was stated that the period of absence from the date of termination till the date of rejoining should be treated as leave period. Against the said portion of the order of the Second Respondent, dated 1.10.1982, the Appellant preferred an appeal before the Chief Conservator of Forests, which also came to be dismissed confirming the order of the Second Respondent on 11.7.1983. Against the said order, the Appellant preferred a Memorandum to the Government. Against the said portion of the order of the Second Respondent, dated 1.10.1982, the Appellant preferred an appeal before the Chief Conservator of Forests, which also came to be dismissed confirming the order of the Second Respondent on 11.7.1983. Against the said order, the Appellant preferred a Memorandum to the Government. As there was no communication from the Government, he moved the State Administrative Tribunal by filing T.A.No.275 of 1993 and the Tribunal in its order dated 20.3.2003, categorically found on facts that the claim of the Appellant for application of F.R.54(9) is not acceptable, as F.R.54(9) was introduced only in the year 1989 with effect from 1987, whereas the period of termination and reinstatement in the case of the Appellant was from 1980 to 1983 and therefore, the Fundamental Rule has no application to the Appellant’s case. Against the said dismissal, the Appellant filed a Writ Petition in W.P.No.30532 of 2004 before this Court and by order, dated 7.7.2008, while dismissing the Writ Petition, this Court directed the Appellant to approach the Government by way of a representation. Thereafter, the Appellant submitted a representation to the Government and the same came to be rejected by order, dated 7.7.2008. Challenging the said order, dated 7.7.2008, the Appellant filed a Writ Petition in W.P.No.20320 of 2008. The learned Single Judge, by order, dated 12.1.2010 dismissed the Writ Petition holding that the claim of the Appellant relates to the period from 1980 to 1983 during which period, the relevant Rule does not provide for regularization of the leave period. 4. Mrs. Selvi George, learned Counsel appearing for the Appellant submits that the period of absence could be treated as a duty period to which, the Appellant is eligible as per Fundamental Rule 54(9). She further submits that the period of suspension was not at all informed to the Appellant and he was terminated without following the Rules and procedure and therefore, the order treating the absence period as leave is liable to be set aside and it should be ordered to be treated as duty period. 5. On the other hand, Mr. She further submits that the period of suspension was not at all informed to the Appellant and he was terminated without following the Rules and procedure and therefore, the order treating the absence period as leave is liable to be set aside and it should be ordered to be treated as duty period. 5. On the other hand, Mr. S.N. Kirubanadan, learned Special Government Pleader submits that the relevant Fundamental Rule in question was introduced only in the year 1987 whereas, the claim of the Appellant relates to the period from 1980 to 1983 and therefore, the relevant Rule which is in force, at that time was not at al available to the Appellant to make his claim for treating the absence period as duty period. It is further submitted that as the termination order was passed after following the due procedure and in accordance with Rules which was in existence then, there is no infirmity in the order of the Second Respondent. 6. It is not in dispute that the Appellant was in service of the Respondent and he was placed under suspension and thereafter, he was terminated from service by order, dated 4.9.1981 with effect from 9.8.1980. In the said order, the Second Respondent has stated that the period of absence from the date of termination till the date of re-joining should be treated as leave period. The claim of the Appellant is that as per FR 54(9), the period of absence ought to have been treated as duty period. This aspect was considered by the Tamil Nadu Administrative Tribunal and held that the claim of the Appellant for application of FR 54(9) is not acceptable as the said as the said FR 54(9) was introduced only in the year 1989 with effect from 1987, whereas, the period of termination and reinstatement in the case of Appellant was from 1980 to 1983 and therefore, FR 54(9) has no application to the case of the Appellant. The same view was taken by the Division Bench while dealing with the Writ Petition filed against the order of the Tribunal, holding that the order which was impugned in the Writ Petition was passed after due notice and also in accordance with Rules which were in force when the order of termination was passed and when the Criminal case was ended in acquittal and no reason to interfere with the order of the Tribunal. 7. The law is well settled that any claim based on the Rules in force during the relevant period of time has to be taken into account. The order which is passed during that period and the Rule which was in force when the order was passed is an authority and the rule of law has to be reckoned and a decision has to be arrived. In this case, the period of termination and reinstatement was from 1980 to 1983 during that period of time, the Fundamental Rule 54(9) based on which, the Appellant claims to treat the period of absence as duty period, was not in force and therefore, the learned Single Judge has rightly held that the claim of the Appellant cannot be granted and therefore, the decision of the Respondent cannot be faulted with. In the light of the above, we do not see any infirmity with the order passed by the learned Single Judge in order to interfere with the same. Accordingly, the Writ Appeal deserves no merits and the same is dismissed. No costs.