G. Jayakumar v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE 31ST DAY OF JULY 2012/9TH SRAVANA 1934 WA.No. 1840 of 2011 ( ) IN RP.534/2011 --------------------------------------AGAINST THE ORDER IN RP.534/2011 DATED 09-08-2011 APPELLANT(S)/APPELLANT/REVIEW PETITIONER: --------------- G.JAYAKUMAR, S/O LATE P.K GANGADHARAN, RESIDING AT JAYA BHAVAN VENNIYOOR, NELLIVILA P.O, THIRUVANANTHAPURAM. BY ADVS.SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT(S)/REVIEW RESPONDENT: -------------------------------- STATE OF KERALA, REPRESENTED BY ITS SCRETARY, HOME (SSA), DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **MANJULA CHELLUR Ag.C.J. & V.CHITAMBARESH, J.** ------------------------------- ## **W.A.No.1840 of 2011** ------------------------------- ## **Dated this the 31[st] day of July, 2012** ## **J U D G M E N T** ## Chitambaresh, J. The Writ Appeal concerns the reinstatement in service of a Police Constable whose conviction in a criminal case was set aside in appeal and against whom no disciplinary action is pending. 2. The appellant had been placed under suspension for alleged misconduct relating to the manhandling of a person under the influence of liquor while he was on guard duty. The appellant was later directed to be reinstated in service and was about to join duty when he was placed under preventive detention. Such preventive detention was under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. The Government by Ext.P3 order dated 26.12.1994 confirmed the preventive detention of the appellant under Section 11 of the said Act for a period of one year from 9.11.1994. WA.No.1840 of 2011 2 3. A case was also registered against the appellant and three others for offences punishable under Sections 21 and 25 read with 8(c) of the Narcotic Drugs and Psychotropic Substances Act. The appellant along with others were convicted and sentenced by Annexure A1 judgment dated 7.10.1995 in S.C.No.285/1994 on the file of the Sessions Court, Thiruvananthapuram. The appellant and others were sentenced to undergo rigorous imprisonment for a period of 20 years. They were also directed to pay a fine of Rs.2 lakhs each and in default to undergo simple imprisonment for a period of 5 years. The appellant who was a head constable was consequently dismissed from service with effect from 30.12.1993 by Annexure A2 order. 4. The conviction and sentence as against the appellant alone was set aside in appeal by Ext.P4 judgment dated 21.5.1998 by this Court. The appellant thereupon by Ext.P5 representation sought reinstatement in service as the termination earlier was on the basis of conviction only. The Director General of Police on the other hand sought sanction to WA.No.1840 of 2011 3 initiate disciplinary action against the appellant. The same was sought on the ground that the appellant had suffered preventive detention for illicit trafficking in narcotic drugs. The Government by Ext.P7 order accorded sanction to initiate disciplinary action against the appellant. The request of the appellant for reinstatement in service was impliedly turned down by the Government. Ext.P7 order was challenged by the appellant as violative of the principles of natural justice and reinstatement in service was also sought therein. 5. The learned single Judge dismissed the writ petition holding that the acquittal of the appellant was on benefit of doubt and not on merits. The learned single Judge also held that Ext.P7 order according sanction to initiate disciplinary action against the appellant cannot be faulted with. The writ petition was dismissed by judgment dated 8.6.2007 and no disciplinary action has been initiated hitherto. The appellant therefore filed a petition for review of the judgment on 6.7.2011 stating that no disciplinary action is pending. The appellant also pointed out WA.No.1840 of 2011 4 that the judgment in appeal setting aside his conviction was purely on merits. The learned single Judge though has condoned the delay in applying for review of the judgment has dismissed the petition by the order impugned. 6. We have heard Mr.C.Rajendran, Advocate on behalf of the appellant and Mrs.Girija Gopal, Government Pleader on behalf of the respondents. The Government Pleader also produced the entire files relating to the preventive detention and the disciplinary action proposed against the appellant. 7. The alleged complicity of the appellant in the crime registered has been discussed in para 21 of Ext.P4 judgment which is extracted hereunder:- “As already noted it is well settled that the confession of a co-accused cannot be the foundation for conviction of the accused. From the evidence on record, it is clear that apart from the confession statements made by accused Nos.1 to 3 in Exts.P2 to P4 to the effect that the brown sugar in question was purchased from the fourth accused, there is absolutely no evidence on record to connect the fourth accused with the crime alleged in this case. PW.1, the Detecting Officer has deposed that apart from Exts.P2 WA.No.1840 of 2011 5 to P4 confession statements of accused 1 to 3, there is absolutely no evidence on record to connect the fourth accused with the crime alleged against him in this case. According to the prosecution, the fourth accused was absconding and he was not available for questioning by PW.1 or any other excise officials and he subsequently surrendered before the lower court. Merely because of the fact that the fourth accused was absconding and he subsequently surrendered before the court, it cannot be presumed that he is guilty in this case in the absence of any other evidence to prove his guilt. Therefore, on the basis of the statements given by accused Nos.2 and 3 in Exts.P3 and P4 to the effect that the brown sugar in question was transported by the fourth accused and accused 1 to 3 obtained the same from the fourth accused cannot be accepted. Therefore the lower court is not at all justified in finding that fourth accused is guilty in this case relying upon Exts.P2 to P4 confession statements made by accused 1 to 3. Hence the finding of guilt, conviction and sentence entered by the lower court against the fourth accused cannot be sustained.” 8. We have no doubt in our minds that the acquittal of the appellant was on merits based on appreciation of evidence and not by extending the benefit of doubt to him. It may at once be noticed that the appellant was dismissed from service WA.No.1840 of 2011 6 solely due to his conviction by the trial court. Annexure A2 order of the Principal, Police Training College does not reflect any other reason for terminating the services of the appellant. The appellant is hence entitled to be reinstated in service the moment his conviction is set aside in appeal. We are unable to agree with the finding of the learned single Judge that the acquittal of the appellant was not on merits. 9. True it is that the Government may perhaps be justified in initiating disciplinary action against the appellant for having suffered preventive detention. The preventive detention was only for a period of one year with effect from 9.11.1994 and has ceased to be in operation from 9.11.1995. Ext.P4 judgment acquitting the appellant was rendered on 21.5.1998 and more than 13 years have elapsed since then. The Government Pleader fairly submitted that no disciplinary action has hitherto been initiated against the appellant pursuant to Ext.P7 order. More than 10 ½ years have elapsed since Ext.P7 order was passed according sanction to initiate disciplinary action. It is too late in WA.No.1840 of 2011 7 the day to contemplate a disciplinary action for having suffered preventive detention that too 15 years ago. 10. We hold that the appellant is entitled to be reinstated in service as his conviction has been set aside and no disciplinary action is pending against him. The further question that remains is as to whether the appellant is entitled to salary and emoluments during the interregnum. The State cannot be blamed for having kept the appellant out of service owing to his conviction in a criminal case. The law obliges the person convicted of an offence to be so kept out and not to be retained in service. The State is well within its rights under such circumstances to deny back wages to the appellant for the period he was kept out of service on that count. 11. We are fortified in this view by the following decisions:- (i) **Ranchhodji Chaturji Thakore v. Superintending Engineer, Gujarat Electricity Board** (1995 (11) SCC 603) WA.No.1840 of 2011 8 - (ii) **Union of India v. Jaipal Singh** (2004 (1) SCC 121) ## (iii) **Corp. Mithilesh Kumar v. Union of India** (2010 (13) SCALE 98). The appellant is hence not entitled to salary and other emoluments from the date of dismissal from service (30.12.1993) till the date previous to the passing of Ext.P7 order (24.10.2000). But there is absolutely no justification for denying salary and other emoluments from the date of Ext.P7 order dealing with the request for reinstatement. The appellant was kept out of service from that date solely on the basis of a proposed disciplinary action which admittedly was not initiated. 12. We direct that the appellant shall be reinstated in service forthwith who is also entitled to salary and other emoluments from Ext.P7 order dated 25.10.2000. The monetary benefits shall be computed and disbursed to the appellant within a period of three months from today failing which it would carry interest at 6% per annum. The judgment under appeal is set WA.No.1840 of 2011 9 aside and the writ appeal is allowed however without any order as to costs under the circumstances. **MANJULA CHELLUR, Acting Chief Judge** . **V.CHITAMBARESH, Judge.** nj.