P MUTHUSWAMY Vs. COMMISSIONER

JUDGEMENT

(1.) HE applied for extra-ordinary leave on medical grounds on 20.01.1992 for one month. According to the writ petitioner, this was not accepted by the Corporation and leave was not sanctioned. HE applied for voluntary retirement by giving three months' notice on 01.09.1992 to retire with effect from 01.12.1992. HE also applied for earned leave for three months from 01.09.1992 to 30.11.1992. His application for voluntary retirement was also refused. Two Enquiry Officers were appointed to enquire into the charge regarding issue of bogus chalans. The proceedings concluded with an order for recovery of double the sum for which bogus chalans were issued. Against the refusal of leave as well as voluntary retirement, the writ petitioner filed an appeal. It was kept pending for six months. The writ petitioner prayed for regularisation of the leave period. In the mean time, a charge memo was issued for alleged unauthorised absence and the writ petitioner filed his representation. An Enquiry Officer was appointed and report was submitted. A show cause notice was issued based on the provisional conclusion for dismissing the petitioner. The petitioner filed his explanation. No orders were passed for one year and on 16.02.1996, he was removed from service and therefore, he filed Writ Petition No.2264 of 1996. The writ petition was dismissed, against that, Writ Appeal No.898 of 1997 was filed. The First Bench of this Court passed the following order: "This order is passed with the consent of both the parties.

(2.) LEARNED counsel for the respondents states that they are ready and willing to consider the case of the appellant and reduce the quantum of punishment. In view of the stand taken by the respondents, the impugned order is set aside. The writ appeal is allowed and the matter is remitted to the respondents for fresh consideration with respect to the quantum of punishment. The appropriate authority will pass the order with respect to the punishment.". 2. Thereafter, a review application was filed and the words "This order is passed with the consent of both the parties" were deleted. After that, on 26.09.2002, treating his period of absence as unauthorised and reducing his pay to the minimum of the revised time scale of pay, an order in G.O.(D) No.392, Municipal Administration and Water Supply (Corporation-3) Department, was passed by the first respondent. Against this, Writ Petition No.40801 of 2002 was filed. By a short order, this writ petition was disposed of, which reads as follows: ". 2. The pay of the individual is reduced to the minimum of the revised time scale of pay of Rs.6,500-200-10500 i.e. Rs.6,500/- w.e.f.16.2.1996.

(3.) THERE is no doubt that the authorities are empowered to dismiss the persons from service or retire the persons compulsorily or any other punishment in accordance with the service rules, but they cannot reduce the salary to the minimum in the time scale of pay as one of punishment, which is not specified in any of the service rules. Hence, the impugned order is set aside in so far as it relates to the reduction of time scale of pay, which is not legally sustainable.". 3. According to the writ petitioner, his terminal benefits were not granted. THEREfore, a contempt petition in Cont. Petn. No.977 of 2007 was filed. The contempt petition was dismissed as follows: ". 3. Prima facie, I am of the view that the contempt proceedings can be invoked only when a specific direction of this Court has been flouted or disobeyed with malicious intention for extraneous reason. Here is a case in which the relief granted to the petitioner is setting aside that portion of the punishment as stated above. THERE is no reference whatsoever about the consequential benefits. In such circumstances non-granting of the consequential benefits, which has been projected for maintaining the contempt petition, cannot be allowed to sustain.". 4. THEREafter, this writ appeal was filed. Learned counsel for the appellant submitted that the authorities unjustifiably proceeded the disposal of the appeal and his leave application and so, the petitioner had been put to untold misery. The order of dismissal and the order reducing his pay to the lower time scale of pay have been set aside by the Court. In these circumstances, the authorities must grant him the entire arrears of back wages and the pensionary benefits accordingly. Learned counsel submitted that the authorities have paid the retirement benefits as per the order passed in the writ petition, but for the period of absence, which should have been ultimately regularised, they have not given the back wages nor have they calculated and paid the pension payable. Learned counsel produced the proceedings dated 10.06.2008, by which the reduction of time scale of pay has been set aside and the petitioner has been informed that revised pension would be disbursed after his pay is revised. 5. On behalf of the Corporation, it is contended that a person, who has been absent unauthorisedly for more than four years, cannot demand as of right that the entire back wages should be paid. It was also submitted that the finding regarding the misconduct viz., unauthorised absence, has not been set aside till date and therefore, there is no question of condoning the entire period of absence and rewarding the petitioner for being absent.