The writ petition has been filed seeking to quash the order of the second respondent in No.D.V.5/93-Ec-I dated 27.07.1998 and consequently to direct the respondents to regularise the service of the petitioner for the period from 19.11.93 to 02.08.98.
2. The petitioner joined in the Central Reserve Police Force as Constable on 04.12.1992 and was given the role No.921162696. His services were terminated with effect from 18.11.1993 vide office der No.D.V.5/93-EC-I dated 18.11.1983 in terms of sub-rule (1) of Rule 5 of C.C.S (Temporary) Services Rules. Challenging the order of termination, the petitioner has filed a writ petition in W.p.No.1607 of 1994 which came to be dismissed on 11.12.1997. Aggrieved by the same, the petitioner has filed an appeal in W.A.No.220 of 1998, which came to be disposed of on 01.04.1998 on the following terms:
"Learned counsel for the respondents states that the Board will be constituted and the appellant will be referred to the Board for Examination. If he is found fit, he will be considered for taking back. In view of the stand taken by the learned counsel for the respondent, the respondents are directed to constitute the Board within two months and take appropriate action within one month from date of receipt of the report of the Board."
3. Consequent to the order of the first Bench, the petitioner was examined by the Medical Board and found to be fit for employment. The second respondent, thereafter, issued a proceeding on 27.07.1998 vide No.D.V5/93-EC-I. The relevant portion reads as follows:
"In deference to the judgment of the High Court of Chennai dated 01.04.1998, No.921162696 Ex Constable (GD) D.Selvakumar is reinstated in service with effect from the date of reporting in Group Centre, CRPF, Avadi, Chennai.
The intervening period i.e. Period between the date of termination and the date of reporting is treated as "Dies-Non'."
4. Thereafter another order was passed on 11.08.1998 in proceddings D.V.5/98-ECI, whereby he was treated as fresh appointment in terms of Sub-Rule 9 of Rule 4 of the Fundamental Rules. The said appointment was made with effect from 03.08.1998 and was assigned a new Force No.981161167. In the order dated 11.08.1998, the earlier order dated 27.07.1998 was amended. Thereafter, another order D.V-5/98-ECI dated 09.09.1998 was issued cancelling the Office Order dated 11.08.1998 in No.D.V.5/98-EC-I. Which reads as follows:
" In continuation to this office order No.D.V.5/98-EC-I dated 27.07.1998.
In deference to the judgment of High Court of Chennai dated 01.04.1998, No.921162696 Ex-Ct.D.Selvakumar has reported in this GC on 03.08.1998 FN and reinstated in service with effect from same date. Accordingly, he is taken on the strength of this GC w.e.f.03.08.98 F.N.
Under the provisions of the decision No.9 to S.R.4(Swamy's compilation of FRSR part-I) on reinstatement of No.921162696 Ct.D.Selvakumar the actual previous service i.e.04.12.1982 to 18.11.1993 rendered by him will be treated as qualifying service for purposes of pension and seniority and for purpose of pay he will be placed in the same position in which he was at the time of termination from service. The break in service w.e.f. 19.11.1993 to 02.08.1998 will not count for any purpose but the service will otherwise be regarded as continuous." (Emphasis supplied)
5. At the present moment, the writ petitioner challenges the order dated 27.07.1998 and 09.09.1998 stating that break in service period between 19.11.1993 to 02.08.1998 should be counted for all purposes including backwages and other benefits. The learned counsel for the petitioner stated that the period between the date of termination and the date of reinstatement has been shown as "Dies Non" whereas in the order dated 09.09.1998, it has been stated that the break in service between 19.11.1993 to 02.08.1998 will not be counted for any purposes but his service will be regarded as continuous service. A reading of the above two orders, it is apparent and clear that the authorities are indicisive on the issue as to how the period between 19.11.1993 to 02.08.1998 should be treated. At the first occasion it is treated as 'Dies non' not in existence, however in the 09.09.98 order it is treated as continuous but will not be counted for any purpose. This is mutually contradictory. Further, a reading of both orders clearly show that the respondents have not considered the claim of the petitioner to treat the said period as period in service for all purposes objectively and in terms of the ruling of the Courts.
6. The reason for termination was stated to be that the petitioner was suffering from Tuberclosis. However, as per the direction of the first Bench of this Court, Medical Board found that the petitioner was medically fit and therefore, he was reinstated into service. It is not the case of the respondents that the petitioner was terminated on the ground of misconduct which will entail the respondents to invoke the provision of "Dies Non" or to ignore such period.
7. Learned counsel for petitioner referred to the decision of a Division Bench of this Court in W.P.No.5300 of 1998 dated 07.12.2006 and pointed out that in what circumstance 'Dies Non' rule will apply. In paragraph 7, it has been observed as follows:
"It is not in dispute that the petitioner was charged for any misconduct in terms of the service Rules applicable to him. No doubt, at the first instance, he was medically invalidated due to the disability suffered. The said order was set aside by this Court. It is also not in dispute that by subsequent order, the petitioner underwent before the Medical Board on second occasion. It is further not in dispute that this time, he was found medically fit to continue inservice. As rightly pointed out by the learned counsel appearing for the petitioner, for earlier orders passed or action taken by them, the petitioner cannot be penalised. Even otherwise, the only rule, which speaks about Dies Non, refer only three categories, namely, (a) dismissal, (b) removal, ( c ) compulsory retirement. It is true that during the above mentioned period, he was not in service. However, as observed earlier, petitioner was no way responsible for the same. The Rule refers only three circumstances and admittedly, there is no reference about medical invalidation. As rightly pointed out by the learned counsel for the petitioner, whether a power is given to do a certain thing in a certain way, the same must be done in that way and deviation to the same is prohibited. This position has been explained by the Supreme Court in Ramachandra VS Govind (A.I.R.1975 SC 915) vide para 25."
8. Mr.Deenadayalan, learned counsel for the respondents submits that it is only after the Medical Board found that the petitioner was medically fit, he was reinstated. Therefore, from the date of termination till the date of re-instatement, he is not entitled to any benefit. He also refers to the counter affidavit and explained the order as has been set out in paragraph 10 of the counter affidavit, which runs as follows:
" It is further submitted that since the break in service is not to be counted for the purpose of pay and other allowances as per provisions in the re-instatement order, the question of paying the arrears of salary for the break period as claimed by the petitioner does not arise. Further each case is decided on its own merit and clear orders have already been issued under the provisions of existing service rules regarding regularisation of the intervening period. The petitioner is having other course of remedy to redress his grievance by applying to the DIGP/IGP and DG,CRPF which he failed to do. Further, as per GOI decision No.11, below CCS conduct Rules 1964, Government Servants seeking redressal of their grievances arising out of their employment or conditions of service should be in their own interest and also in consistence with official propriety and discipline, should first exhaust the normal official channels of redressal before they take the issue to a Court of law and the petitioner has not exhausted the official remedies available to him and as such the W.P. is premature."
9. It is further clarified in the counter affidavit that insofar as the pay is concerned, the same will be payable as he was paid on the date of termination. In otherwords both the salary as applicable on the date of re-instatement and the arrears of salary were denied.
10. In the instant case, the petitioner was terminated in terms of Sub Rule (9) of Rule 4 of Fundamental Rules, as stated above on medical grounds. As per the direction of the Division Bench of this court, the Medical Board found him fit to resume duty and he was reinstated. The question of treating the period from the date of termination to the date of reinstatement as 'Dies Non' will not apply to the facts of the present case as it is not consequent to any disciplinary action like dismissal, removal, compulsory retirement or for any misconduct. Further on going through the above two orders, which are under challenge, namely, the order dated 27.07.1998 and 09.09.1998, the claim of the petitioner for arrears and for all consequential benefit on reinstatement, which is denied, has not been clearly spelt out in the orders. The respondents have now improved the case in the counter affidavit explaining the impugned proceedings.
11. It is trite law that the case of the respondents cannot be improved on the basis of the counter-affidavit or the written submissions vide Mohinder Singh Gill and another v. - The Chief Election Commissioner, New Delhi and others AIR 1978 Supreme Court 851 and S.N.Mukherjee v. - Union of India (1990)4 SCC 594. In para 8 of the decision in AIR 1978 SC 851 reads as follows:-
"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J., in Gordhandas Bhani (AIR 1952 SC 16)(at p.18):
"Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself".
Orders are not like old wine becoming better as they grow older."
Para 36 in (1990)4 SCC 594 reads thus:-
"36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision on judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage."
12. In this case, the respondents have treated the period between the date of termination and the date of reinstatement as "Dies Non" at the first instance and consequently, extended certain benefits and stated that insofar as the pay is concerned, the same will be paid as on the date of termination, for which, no reason has been given in the impugned orders. The two orders of the second respondent sans reasons cannot be sustained as held by the Apex Court in the decisions cited supra.
13. In the result, the Writ Petition is allowed and the impugned orders are set aside and the matter is remitted back to the second respondent or any other appropriate authority for re-consideration of the claim of the petitioner for all consequential benefits consequent to this reinstatement. The respondents shall also keep in mind the decision of the Division Bench in K.Jayachandran VS Deputy Inspector General,Southern Zone, Central Industrial Security force, 'D' block, Rajaji Bhavan, Besant Nagar, Chennai.90 and another in W.P.5300 of 1998 decided on 07.12.2006 while deciding the claim.The respondent shall give the petitioner or his duly authorised person an opportunity to put forward his plea on merits and the respondents shall decide the matter within a period of one month thereafter. Connected miscellaneous petition is closed. No costs.
PAL To
1. Deputy Inspector General of Police, C.R.P.F., Avdadi, Chennai.65.
2. Addl.Deputy Inspector General of Police, C.R.P.F.,Group Centre, Avadi, Chennai.65
3. The Commandant, 96Bn;C.R.P.F., Jammu and Kashmir