D.J. VIMALAMANI AMMA and others v. State of Kerala and others (WP(C) Nos.15960/2020 and 643/2021)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944** **WP(C) NO. 15960 OF 2020** ## **PETITIONERS:** - **1 D.J.VIMALAMANI AMMA AGED 56 YEARS** - **W/O.K.VIJAYAN, NOW RESIDING AT THRIKKARTHIKA, 23/2396, V.P.GANGADHARAN ROAD, PALLURUTHY, COCHIN-6, ERNAKULAM.** - **2 ADDL.P2 K. VIJAYAN, AGED 64 YEARS, S/O KUNJUKRISHNAN KONATHU PUTHENVEEDU, EDAIKIDAM, EZHUKONE NORTH, KOLLAM-691505.** - **3 ADDL.P3 VIMAL KUMAR V, AGED 37 YEARS, S/O K.VIJAYAN KONATHU PUTHENVEEDU, EDAIKIDAM, EZHUKONE NORTH, KOLLAM-691 505.** - **4 ADDL.P4 VISHNU K VIJAYAN AGED 31 YEARS, S/O.K. VIJAYAN KONATHU PUTHENVEEDU, EDAIKIDAM, EZHUKONE NORTH, KOLLAM-691505.** - **5 ADDL.P5 VINEET K VIJAYAN AGED 29 YEARS, S/O K VIJAYAN KONATHU PUTHENVEEDU, EDAIKIDAM, EZHUKONE NORTH, KOLLAM-691505 [ADDL.P2 TO P5 ARE IMPLEADED AS PER ORDER DATED 21/12/2022 IN IA-2/22 IN WP(C) 15960/2020]** **BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL(L-150) ARUN POOMULLI(D/3696/2015) MEERA JOPPAN(K/001271/2022) AISWARYA THANKACHAN(K/1521/2021) PREETHA S CHANDRAN(K/298/2009) SURABHI SANTHOSH(KAR/155/2017) ABHIJITH SREEKUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF FISHERIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-** **[WP(C) Nos.15960/2020, 643/2021]** **2** **695001.** - **2 THE DIRECTOR OF FISHERIES, DIRECTORATE OF FISHERIES, 4TH FLOOR, VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM-695033.** - **3 THE COMMISSIONER, KERALA FISHERMEN'S WELFARE FUND BOARD, AYYAPPA NAGAR, PONKUNNAM, TRICHUR-2.** **BY ADV SRI.ASOK M.CHARIYAN, SC, KFWFB** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2023, ALONG WITH WP(C).643/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[WP(C) Nos.15960/2020, 643/2021]** **3** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 20[TH] DAY OF JANUARY 2023 / 30TH POUSHA, 1944** **WP(C) NO. 643 OF 2021** ## **PETITIONERS:** |**1**|**D.J.VIMALAMANI AMMA,**| |---|---| ||**AGED 51 YEARS**| ||**W/O.K. VIJAYAN, RESIDING AT THRIKKARTHIKA, 23/2396,**| ||**V.P. GANGADHARAN ROAD, PALLURUTHY, COCHIN6,**| ||**ERNAKULAM.**| |**2**|**K. VIJAYAN ( SOUGHT TO BE IMPLEADED )**| ||**S/O KUNJUKRISHNAN**| ||**KONATHU PUTHENVEEDU,**| ||**EDAIKIDAM, EZHUKONE NORTH,**| ||**KOLLAM ( SOUGHT TO BE IMPLEADED )**| |**3**|**VIMAL KUMAR V ( SOUGHT TO BE IMPLEADED )**| ||**S/O K. VIJAYAN**| ||**KONATHU PUTHENVEEDU,**| ||**EDAIKIDAM, EZHUKONE NORTH,**| ||**KOLLAM- ( SOUGHT TO BE IMPLEADED )**| |**4**|**VINEET K VIJAYAN ( SOUGHT TO BE IMPLEADED )**| ||**S/O K VIJAYAN**| ||**KONATHU PUTHENVEEDU,**| ||**EDAIKIDAM, EZHUKONE NORTH,**| ||**KOLLAM ( SOUGHT TO BE IMPLEADED )**| |**5**|**VISHNU K VIJAYAN ( SOUGHT TO BE IMPLEADED )**| ||**S/O K. VIJAYAN**| ||**KONATHU PUTHENVEEDU,**| ||**EDAIKIDAM, EZHUKONE NORTH,**| ||**KOLLAM ( SOUGHT TO BE IMPLEADED )**| ||**BY ADVS.**| ||**RENJITH B.MARAR**| ||**ARUN POOMULLI(D/3696/2015)**| ||**LAKSHMI.N.KAIMAL(L-150)**| ||**MEERA JOPPAN(K/001271/2022)**| ||**SURABHI SANTHOSH(KAR/155/2017)**| ||**PREETHA S CHANDRAN(K/298/2009)**| **[WP(C) Nos.15960/2020, 643/2021]** **4** ## **AISWARYA THANKACHAN(K/1521/2021) ABHIJITH SREEKUMAR** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF FISHERIES, GOVERNMENT SECRETARIAT, TRIVANDRUM 695 001.** - **2 THE DIRECTOR OF FISHERIES, DIRECTORATES OF FISHERIES 4TH FLOOR, VIKAS BHAVAN, PALAYAM, TRIVANDRUM 695 033.** - **3 THE COMMISSIONER, KERALA FISHER MENS WELFARE FUND BOARD, AYYAPPA NAGAR, PONKUNNAM, TRICHUR 680 002.** - **4 REGIONAL EXECUTIVE OFFICER, KERALA FARMERS WELFARE FUND BOARD, SALIM ALI ROAD, ERNAKULAM 682 031.** ## **BY ADV SRI.ASOK M.CHARIYAN, SC, KFWFB** T **HIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.01.2023, ALONG WITH WP(C).15960/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[WP(C) Nos.15960/2020, 643/2021]** **5** ## **JUDGMENT** **[WP(C) Nos.15960/2020, 643/2021] Dated this the 20[th] day of January,2023** W.P.(C).No.15960 of 2020 is filed challenging Ext.P12 order issued by the 1[st] respondent and seeking directions to the respondents to disburse all service benefits due to the petitioner from the date of dismissal from service ie 30.06.2005 to the date of reinstatement ie is 24.09.2011. While W.P.(C).643 of 2021 is filed seeking the release of the revised pensionary benefits due to the petitioner taking note of the reinstatement of the petitioner on acquittal by this court. 2. It is submitted by the learned counsel for the petitioner that, the original petitioner in these writ petitions had since passed away and her legal heirs have been impleaded as petitioner's legal heirs. It is submitted that, the petitioner retired from service on superannuation on 31.03.2020 while, working as Special Grade Assistant in the Regional office of the respondent Board. It is submitted that while she was working in the board she was implicated in three criminal cases under Section 138 of Negotiable Instruments Act. She was placed under suspension on 06.07.2012. The cases were C.C.NO.158/2004, C.C. No.86/2001 and **[WP(C) Nos.15960/2020, 643/2021]** **6** C.C.No.813/2002 on the files of the learned Judicial First Class Magistrate Court-I, Kochi. In C.C. No. 158/2004 the petitioner was acquitted but she was convicted in C.C.No.86 of 2001 and C.C.813 of 2002 on 09.03.2004 and 03.11.2004 respectively. It is submitted that the petitioner was dismissed from service on 30.06.2005 only on account of the conviction. 3. It is submitted that, the convictions were affirmed by the Sessions Court, however, the matter was taken before this Court in revision and by Ext.P1 and P2 judgments dated 29.07.2010, the petitioner was acquitted. Thereafter Ext.P3 order was passed reinstating the petitioner in service. The facts are revealed by Ext.P3 order. The petitioner thereafter joined duty as Senior Assistant at the Regional office of the Board on 24.09.2011. She was posted as Fisheries officer on 03.10.2011 and Ext.P5 order was passed regularizing the period of suspension which states that she would not be entitled for emoluments, till the date of reinstatement. The petitioner challenged the said condition before the government and Ext. P10 order was passed on 27.07.2009. The petitioner challenged the said proceedings before this Court and Ext.P11 judgment was rendered directing the 1[st] respondent to consider Ext.P10 representation submitted by the petitioner, specifically in terms of **[WP(C) Nos.15960/2020, 643/2021]** **7** Rule 18(b) of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960. It is submitted that, even thereafter Ext.P12 order was passed, refusing to grant the benefit of Rule 18(b) to the petitioner, which is under challenge herein. It is submitted that, the retirement benefits due to the petitioner except the DCRG have not been released to the petitioner and that the petitioner is entitled to revision of all retirement benefits taking note of the emoluments to be granted to her from 30.06.2005 to 24.09.2011 also. 4. The learned counsel for the petitioner submits that since the petitioner had been dismissed from service only on account of her convictions in the criminal cases and since the convictions stands set aside, the provisions of Rule 18(b) of the Kerala Civil Services (Classification, Control & Appeal) would apply and that the petitioner would be entitled to all benefits that she would have drawn, had she been in service. 5. Detailed counter affidavit has been placed on record by the Respondent No.3 contending that the petitioner did not actually work from 30.06.2005 to 24.09.2011 and that she would therefore not be entitled to be emoluments for the said period. It is contended that, the contentions of the petitioner had been properly considered and answered both by the Board as well as the Government. **[WP(C) Nos.15960/2020, 643/2021]** **8** Therefore, there is no merit in the contentions raised. 6. The learned Government Pleader would also point out that in view of the fact that the acquittal of the petitioner was not one on merits and since it was not an honourable acquittal, the emoluments cannot be released to the petitioner. 7. I have considered the contentions advanced. It is apparent from the pleadings placed on record that the dismissal was on 30.06.2005 and the acquittal by Ext. P1 and P2 Judgment was on 29.07.2010. Considering the acquittal, the petitioner was reinstated on 24.09.2011. There is no contention raised by the respondents that there was ever any disciplinary proceedings conducted against the petitioner. The order of dismissal on 30.06.2005 was based only on the conviction by the criminal Court and not on any disciplinary proceedings concluded against her. The Rule 18 (b) prior to its amendment in December, 2016 reads as follows; “(b) in case the said conviction is subsequently set aside in appeal or otherwise and the Government servant is acquitted of the charges, the order of dismissal or removal ceases to have effect and revised orders shall be issued forthwith to reinstate him in service entitling him all the benefits to which he would have been entitled had he been in service: **[WP(C) Nos.15960/2020, 643/2021]** **9** The Rule was amended only in December 2016 and the following words were inserted ie. “only if he is fully exonerated of the charges on merit and no appeal is proposed against the acquittal and no further enquiry is proposed by the disciplinary Authority”. 8. As stated earlier, the said amendment was notified only on 27.12.2016. Therefore prior to the said amendment the position undoubtedly was that in case an employee had been dismissed from service only on account of conduct which lead to conviction in a criminal case, the said person would be entitled to reinstatement on his acquittal in appeal and would also be entitled to all service benefits as if the dismissal had not occurred. A full bench of this Court in **State of Kerala v. N.G. Joseph [2014 (4)KHC 841]** had occasion to consider this specific question. It was held that were an employee is dismissed without conclusion of any disciplinary proceedings against him and only on the basis of a conviction in a criminal case, on the employee being acquitted by the appellate court, the employee would be entitled to all service benefits as if he had continued in service. Adverting to the provisions of chapter VII of Part I, KSR Rule 18 of the KCS (CC & A) Rules and the case law on **[WP(C) Nos.15960/2020, 643/2021]** ## **10** ## the point in extenso, the full bench held as follows: _10. In our view, there is nothing in Mohandas's case[supra] or under the KSR, on which reliance has been placed by the Division Bench in V.C.Jose's case [supra], which would suggest that in the event of a reinstatement of an employee based on an acquittal in terms of R.18(iii)(b) of the KCS (CC&A) Rules, the treatment to be accorded to the period of absence from duty between the date of termination and the date of his subsequent re-instatement should be in the manner contemplated under Chapter VII of KSR. The said finding of the Division Bench in V.C.Jose's case [supra] is clearly erroneous in law. The pay and allowances due to the employee, for the period during which he was absent from duty on account of the termination of his service consequent to a conviction, would have to be in the manner contemplated under R.18(iii)(b) of the KCS (CCA) Rules and he would be entitled to all benefits he would have been entitled to had he continued in service._ 9. In the instant case as well, since the unamended Rule 18(b) is to be applied, the petitioner is entitled to the reliefs sought for. In the result, the impugned orders rejecting the claim of the petitioner for all service benefits for the period from 30.06.2005 to 24.09.2011 were illegal and unsustainable. Since the dismissal of the employee and her reinstatement were prior to the amendment effected to Rule 18(b), I am of the opinion that the petitioner would be entitled to the benefits of the provisions of the unamended Rule 18 (b). These writ petitions are therefore ordered setting aside the impugned orders and directing the payment of all service benefits to **[WP(C) Nos.15960/2020, 643/2021]** **11** the petitioner for the period from 30.06.2005 to 24.09.2011, as if the petitioner had continued in service including all monetory benefits and emoluments. The necessary shall be done by the respondents to calculate the benefits to and to release the arrears thereof to the petitioner within 4 months from the date of receipt of the copy of this judgment. The pensionary benefits due to the petitioner shall also be revised and the arrears of pension as also the arrears due to the petitioner on revision of the pensionary benefits shall be calculated and disbursed to the petitioner with in a period on two months thereafter. Sd/- **ANU SIVARAMAN JUDGE** SAAP **[WP(C) Nos.15960/2020, 643/2021]** **12** ## **APPENDIX OF WP(C) 643/2021** PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE ORDER NO. D/1798/2011 DT. 29/5/2020 BY THE REGIONAL EXECUTIVE OFFICE, ERNAKULAM. EXHIBIT P2 THE TRUE COPY OF THE PROCEEDINGS OF THE COMMISSION DT. 28/5/20 ORDER NO. B/1450/2020. EXHIBIT P3 THE TRUE COPY OF THE REPRESENTATION DT. 15/10/2020. EXHIBIT P4 THE TRUE COPY OF THE AFFIDAVIT DT. 23/12/2020. EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT IN WPC NO. 20317/2019 ON THE FILE OF HONBLE HIGH COURT OF KERALA, ERNAKULAM DT. 14/8/2019. **[WP(C) Nos.15960/2020, 643/2021]** **13** ## **APPENDIX OF WP(C) 15960/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 29.7.2010 IN CRL.R.P.NO.2290/2010 OF THE HON'BLE HIGH COURT. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 29.7.2010 IN CRL.R.P.NO.2854/2010 OF THE HON'BLE HIGH COURT. EXHIBIT P3 TRUE COPY OF THE G.O.(MS)NO.86/11/FPD DATED 22.9.2011. EXHIBIT P4 TRUE COPY OF THE ORDER NO.B-/11 DATED 23.9.2011. EXHIBIT P5 TRUE COPY OF THE ORDER NO.B-3944/2011 DATED 7.3.2012 OF THE COMMISSIONER, KERALA FISHERMEN'S WELFARE FUND BOARD. EXHIBIT P6 TRUE COPY OF THE CERTIFICATE DATED 6.11.2012 ISSUED FROM THE LAKESHORE HOSPITAL. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 23.3.2012 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 11.4.2012 SUBMITTED BEFORE THE RESPONDENTS. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 16.7.2019 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 27.7.2019 SUBMITTED BEFORE THE 1ST RESPONDENT BY THE PETITIONER, WITHOUT ITS ENCLOSURES. EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 14.8.2019 IN W.P.(C) NO.20317/2019 OF THIS HON'BLE **[WP(C) Nos.15960/2020, 643/2021]** **14** COURT. EXHIBIT P12 TRUE COPY OF THE G.O.(RT)NO.210/2020/FHD DATED 15.4.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 14.7.2020 IN CONTEMPT CASE (CIVIL) NO.197/2020. //True Copy//PA to Judge