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M.Kasinathan-vs-The Government Of Tamil Nadu on 25 February, 2010

Madras High Court M.Kasinathan-vs-The Government Of Tamil Nadu on 25 February, 2010

DATED: 25 .02.2010

CORAM

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

W.P.No.37069 of 2003

and

W.P.M.P.No.44996 of 2003

M.Kasinathan ……Petitioner

vs.

1.The Government of Tamil Nadu,

Home Department,

Rep. By its Secretary,

Fort St.George,

Chennai 600 009.

2.The Commissioner of Police,

Office of the Commissioner of Police,

Egmore, Chennai 600 008.

3.The Joint Commissioner of Police,

South Zone,

Office of the Commissioner of Police,

Egmore, Chennai 600 008. ….Respondents

Writ Petition under Article 226 of The Constitution of India praying for the issuance of a writ of Certiorari to call for the records of the second respondent and quash the order in proceedings No.3(2)/419/60683/2003 dated 28.07.2003. For Petitioner : M/s.M.Uma Shankar

For Respondents : Mrs.C.K.Vishnupriya

Additional Government Pleader

O R D E R

The petitioner has filed this writ of Certiorari in calling for the records of the second respondent in proceedings No.3(2)/419/60683/2003 dated 28.07.2003 and to quash the same.

2. The petitioner served as Head Constable from the year 1986 in Intelligence Department and was removed from service with effect from 18.11.1999 on specified charges as per Section 498A and 304(B) I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act. The petitioner was reinstated in service by the second respondent as per order in No.410(S)02 dated 01.10.2002 since the charges were dropped against him. In the very same order dated 01.10.2002, he was promoted to the Grade of Special Sub Inspector (Crime). The promotion was with effect from the date of removal from service i.e., 18.11.1999 till the date of his retirement dated 31.05.2002. Further it was also ordered that the second respondent should grant all benefits and other reliefs applicable to him and make arrangement for his pension to be paid after his retirement.

3. The petitioner was residing at No.7, Mambalam Police Quarters, T.Nagar, Chennai 600 017 and he had not received his retirement and other benefits legally due to him and was unable to vacate the house. He wrote a letter dated 17.02.2003 addressed to the respondent by mentioning that if he vacated the house then he would incur heavy loss and therefore requested the second respondent to take necessary action taking into account his plight. Once again he wrote a letter dated 11.04.2003 to the second respondent stating that he was unable to vacate the premises since he had not received the retirement and other benefits and only if he received the retirement benefits, he would vacate the premises and made a further request permitting him to stay in the quarters till he received his retirement benefits.

4. To his shock and dismay, the petitioner received a Circular dated 12.04.2003 issued by the second respondent directing him to vacate the quarters as he was in possession of the same after his retirement and also directed to vacate the premises at the earliest.

5. In the meanwhile, the third respondent had issued an order in RC.No.Pen(S) 994/15228/2002 dated 19.06.2003, he sent his representation dated 24.06.2003 ascribing the reason that the delay caused in vacating the quarters was because of the fact that he was not given the retirement benefits and also that he had vacated the premises on 05.06.2003. He made a representation dated 24.06.2003 to the second respondent mentioning the deduction amount of Rs.28,470/- towards house rent and the deduction of the three times of house rent by the third respondent ought to be waived off and also stated that if at all the rent should be deducted it should be one month rent and not the three times penal rent as done by the third respondent. Further more, he made a representation to the Honourable Chief Minister of Tamil Nadu on 09.04.2003, who according to the petitioner had officially declared that the policemen who was charged fine for staying in the quarters after the expiry of the tenure will be exempted and the order of penal charge will be withdrawn.

6. According to the learned counsel for the petitioner, the impugned order No.3(2)/419/60683/2003 dated 28.07.2003 passed by the second respondent is an arbitrary and illegal one and moreover, the petitioner was not informed that he should not reside in the quarters after his retirement and if he continued to stay, he would be charged with the penal and without informing the same, the impugned order came to be passed and the deduction of Rs.28,470/- from the total retirement benefit of Rs.1,56,173/- due to the petitioner was against all Cannons of Law and in short, the third respondent had passed the order dated 19.06.2003 without application of mind and therefore prays for allowing the writ petition in the interest of justice.

7. In response, the learned Additional Government Pleader appearing for the respondents submits that as per G.O.Ms.No.950 Home (Police.X) Department dated 29.06.1993 , with a view to adopt a uniform formulae in regard to the collection of penal rent instead of market rate of rent, the Director General of Police has now proposed that 30% of basic pay last drawn may be fixed as the penal rate of rent to be recovered from the transferred/retired/deceased police personnel besides their House Rent Allowance and the Government after careful consideration had accepted the said proposal and directed that the market rate of rent of 30% of the basic pay last drawn by the concerned employee besides non-drawal of House Rent Allowance and percentage being increased depending on the period of overstayal and for overstayal upto three months, 30% of basic pay and forfeiture of House Rent Allowance should be deducted and this order also had been issued with the concurrence of the Finance Department dated vide U.O.No.91344/All/92-1 dated 13.10.1992 and as such the contra contention of the petitioner in this regard could not be accepted since it does not confirm to any of the principles of law and therefore prays for dismissal of the writ petition. In this connection, the learned Additional Government Pleader draws the attention of this Court to Rule 70 of the Tamil Nadu Pension Rules, which runs as follows:- 70. Recovey and adjustment of Government dues:-

It shall be the duty of every retiring Government servant to clear all Government dues before the date of his retirement.

Where a retiring Government servant does not clear the Government dues and such dues as ascertainable-

(a) an equivalent cash deposit may be taken from him; or

(b) out of the gratuity payable to him an amount equal to that recoverable on account of ascertainable Government dues shall be deducted therefrom. NOTE.(1)- The expression ascertainable Government dues includes balance of house building or conveyance advance, arrears or rent and other charges pertaining to occupation of Government accommodation, over-payment of pay and allowances and arrears of income-tax deductable at source under the Income-tax Act, 1961 (43 of 1961). It also includes dues to the local bodies or to the Staff Co-operative Societies comprising of Government servants and registered under the Tamil Nadu Co-operative Societies Act, 1961 (or to the Tamil Nadu Housing Board or to the Corporation owned/controlled by the State Government.] [NOTE.(2)- Gratuity shall not be liable to attachment in accordance with the provision of clause (g) of the proviso to sub-section (1) of Section 60 of the Code of Civil Procedure, 1908 (Central Act V of 1908).]

8. It is to be noted that so long as the petitioner was in occupation of the police quarters, he was to pay the 30% of basic pay plus forfeiture of House Rent Allowance and in the instant case on hand, admittedly he vacated the premises on 05.06.2003 and after going through the contents of G.O.Ms.No.950, Home (Police.X) Department dated 29.06.1993 and the ingredients of Rule 70 of the Tamil Nadu Pension Rules, this Court is of the considered view that the orders passed by the second respondent dated 28.07.2003 and also the order of the third respondent dated 19.06.2003 are not liable to be interfered with, since this Court does not find any patent material error or illegality in the eye of law and viewed in that perspective, the writ petition fails.

9. In the result, the writ petition is dismissed leaving the parties to bear their own costs. The connected miscellaneous petition is also dismissed. vri

To

1.The Government of Tamil Nadu,

Home Department,

Rep. By its Secretary,

Fort St.George,

Chennai 600 009.

2.The Commissioner of Police,

Office of the Commissioner of Police,

Egmore, Chennai 600 008.

3.The Joint Commissioner of Police,

South Zone,

Office of the Commissioner of Police,

Egmore,

Chennai 600 008

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