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2011 DIGILAW 3451 (MAD)

B. Ashok Kumar v. Transport Commissioner, Chennai

2011-07-28

D.HARIPARANTHAMAN

body2011
Judgment :- 1. The petitioner joined the service as Junior Assistant on 16.08.1977. He was promoted as Assistant on 15.11.1989. He was further promoted as Superintendent on 10.11.2000. While so, pursuant to the disciplinary action taken against the petitioner, the respondent imposed the punishment of reduction in rank as Assistant for three years by an order dated 22.11.2007. The punishment period expired on 21.11.2010. The petitioner sought restoration to the post of Superintendent on 22.11.2010. When the petitioner gave a representation dated 23.11.2010 requesting the respondent to restore him as Superintendent, the same was rejected by the respondent by the impugned order dated 24.03.2011 on the ground that the petitioner joined duty in the demoted post only on 21.11.2008 and he was on leave in the demoted post from 03.12.2007 to 20.11.2008 and therefore, that leave period could be excluded for three years computation and he would be permitted to join as Superintendent after the said leave period. In these circumstances, the petitioner has filed the present writ petition seeking to quash the aforesaid order dated 24.03.2011 of the respondent. 2. The respondent filed a counter affidavit refuting the allegations. 3. Heard both sides. 4. The punishing authority did not mention in the punishment order itself that the period for which the reduction has been ordered will be exclusive of any interval spent on leave before the period is completed. No such clause is found in the impugned order and therefore, the respondent could not seek to exclude the leave period from the punishment period. 5. It is relevant to extract the Fundamental Rules 29 and the same is extracted hereunder: "An authority ordering the reduction of an officer should expressely state in the order that the period for which the reduction has been ordered will be exclusive of any interval spent on leave before that period is completed." 6. The petitioner was imposed with the punishment of reduction in rank as Assistant for three years. The Punishment order is dated 22.11.2007. He was on leave in the demoted post from 03.12.2007 to 20.11.2008. In the impugned order, the said period is sought to be excluded and the petitioner is directed to serve as Assistant even after 3 years period until the leave period get exhausted. The Punishment order is dated 22.11.2007. He was on leave in the demoted post from 03.12.2007 to 20.11.2008. In the impugned order, the said period is sought to be excluded and the petitioner is directed to serve as Assistant even after 3 years period until the leave period get exhausted. But the instruction was issued by the Government to Rule 29 in G.O.Ms.No.492, Personnel and Administrative Reforms (FR.III) Department, dated 25.05.1982 and the same is as follows: "The following notification will be published in the Tamil Nadu Government Gazette Notification In exercise of the powers conferred by the proviso to Article 309, read with Article 313 of the Constitution of India and of all other powers hereunto enabling, the Governor of Tamil Nadu hereby makes the following amendment to the Fundamental rules and the Instructions thereunder. 2. The amendment hereby made shall be deemed to have come into force on the 19th May 1979. In the said Fundamental Rules, for rule 29 and the instruction thereunder the following rule and instruction shall be substituted, namely- "29. If a Government servant is reduced as a measure of penalty to a lower service, grade, or post or to a lower stage in his time-scale, the authority ordering such reduction shall state the period for which it shall be effective and whether on restoration, the period of reduction shall operate to postpone future increments and if so, to what extent." Instruction An authority ordering the reduction of an officer should expressly state in the order that the period for which the reduction has been ordered will be exclusive of any interval spent on leave before that period is completed." 7. As per the aforesaid instruction, the punishing authority should expressly state in the punishment order that the period for which the reduction has been ordered would be exclusive of any interval spent on leave before the punishment order is completed. The instruction issued in G.O.Ms.No.492 contemplates specific statement to be made in the punishment order that the period for which the reduction has been ordered would be exclusive of any interval spent on leave. Since no such statement is made in the impugned order, the respondent cannot insist the petitioner to serve beyond the punishment. 8. The instruction issued in G.O.Ms.No.492 contemplates specific statement to be made in the punishment order that the period for which the reduction has been ordered would be exclusive of any interval spent on leave. Since no such statement is made in the impugned order, the respondent cannot insist the petitioner to serve beyond the punishment. 8. Since the punishment order does not expressly state so, in my view, the impugned is liable to be quashed and accordingly, the same is quashed and the petitioner should be restored as Superintendent from 22.11.2010. The writ petition is allowed in the above terms. No costs. Connected miscellaneous petition is closed.