Kerala State Electricity Board Limited v. Damodaran P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 27TH DAY OF JULY 2017/5TH SRAVANA, 1939** **WA.No. 1435 of 2017 () IN WP(C).22821/2016 -------------------------------------------AGAINST THE JUDGMENT IN WP(C) 22821/2016 of HIGH COURT OF KERALA DATED 22.3.2017** **APPELLANTS/RESPONDENTS: ------------------------** **1. THE KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY THE MANAGING DIRECTOR, VYDHUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM-695004.** **2. THE CHIEF ENGINEER(HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDHUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM-695004.** **3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE,SREEKANDAPURAM, KANNUR DISTRICT.** **BY ADVS.SRI.RAJU JOSEPH (SR.) SRI.GEORGEKUTTY MATHEW, SC, KSEB** **RESPONDENT/PETITIONER:** **----------------------** **DAMODARAN P., PARAPPURATH HOUSE,KUNDAYAMKOVVAL, (PO)KANKOL,PAYYANUR, KANNUR DISTRICT-673307.** **BY ADV. SRI.KALEESWARAM RAJ BY ADV. KUM.A.ARUNA** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27-072017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VPS** **“C.R.”** ## **NAVANITI PRASAD SINGH, C.J. & RAJA VIJAYARAGHAVAN V., J.** ## **--------------------------------------------------** ## **W.A. No.1435 OF 2017** **--------------------------------------------------Dated this the 27[th] day of July, 2017** ## **JUDGMENT** ## **------------------** ## _**Navaniti Prasad Singh, C.J.**_ 1. The Kerala State Electricity Board Limited (“Board” for short) has filed this intra court appeal challenging the judgment of the learned single Judge in W.P.(C) No.22821 of 2016 dated 22.3.2017. 2. We have heard Sri.Raju Joseph, learned counsel appearing for the Board and Sri.Kaleeswaram Raj, learned counsel appearing for the 1[st] respondent/writ petitioner. 3. It appear that the 1[st] respondent was engaged on a contractual basis by the Board for a fixed period in the year 2002-2003. While working as such, there was a complaint against him pursuant to which the Vigilance and Anti Corruption Bureau allegedly laid a trap on 20.5.2003 and he was allegedly caught taking bribe. 4. A criminal case was instituted against him. During the pendency of the said criminal case, the writ petitioner, upon vacancy being advertised, applied through the Kerala Public Service Commission and was recruited in the service of the Board in the year 2005. Thus, he came W.A. 1435/2017 2 into permanent service of the Board, after his selection by the Kerala Public Service Commission, as a Mazdoor. In the year 2010, he was convicted by the criminal court and sentenced to undergo two years rigorous imprisonment. As a consequence of his conviction, Ext.P8 order was issued on 22.11.2011 dismissing him from service. 5. A reference to the said order, as contained in Ext.P8, would show that it had been issued with reference to Kerala Civil Services (Classification, Control & Appeal) Rules **,** 1960 (“Rules 1960” for short). Later, on appeal to this Court from the conviction, a learned single Judge of this Court by judgment dated 9.6.2016 in Crl.A. No.486 of 2010 acquitted the writ petitioner. The relevant paragraph is quoted hereunder: - “20. From the above discussions, this Court is of the view that the prosecution has failed to prove the offences under Sections 7 and 13(2) read with Section 13(1)(d) of the PC Act. The conviction and sentence passed by the court below has resulted in substantial miscarriage of justice. It has been pointed out by the learned counsel for the appellant that the appellant has lost his job only because of the corruption case against him. Considering all the above, this Court is satisfied that the appellant is entitled to have an honourable acquittal in the matter.” 6. Upon his acquittal as aforesaid, the writ petitioner filed a representation to the Board for his reinstatement. There being no action by the Board, the 1[st] respondent/writ petitioner filed W.P.(C) No.22821 of 2016 before W.A. 1435/2017 3 this Court. After notice to the Board and hearing the parties, a learned single Judge of this Court by the impugned judgment, allowed the writ petition and directed reinstatement of the writ petitioner with full back wages and other consequential benefits in terms of Rule 18 of the Rules **,** 1960. Hence the appeal by the Board. 7. The learned Senior Counsel appearing for the Board has made principally two submissions. Firstly, reference to Rules **,** 1960 by the learned single Judge was misconceived in as much as the Board had its own regulation namely, the Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations, 1969, (“Regulations 1969” for short) of which regulation 19 dealt with such a situation. In terms of regulation 40 of the said regulations, the Rules **,** 1960 had become inapplicable. Secondly, the mere fact that a person had been acquitted, was no ground to order his reinstatement with full back wages, for such an order had to be passed by the authority who had earlier passed orders with reference to regulation 19. Back wages upon reinstatement would not be the rule. However it is submitted that pursuant to orders passed by this Court in the Writ Petition, the writ petitioner has been reinstated. The question that remains to be considered is only as to whether he is entitled to full back wages as ordered by the learned Single Judge. W.A. 1435/2017 4 8. On the other hand, the learned counsel appearing for the writ petitioner submits that a reference to rule 18 of the Rules, 1960 would show that it - was amended and consequence of reinstatement upon acquittal was added. This was done pursuant to orders of the Apex Court in the case of **Deputy Director of Collegiate Education (Administration) Madras** - **v. S.Nagoor** (1995 (3) SCC 377) wherein interpreting Article 311(2)(a) of the Constitution, the Apex Court had said that upon acquittal the consequence of reinstatement would be with full back wages and restoration of all privileges. That being the position, he would submit that even if we were to read regulation 19 of the Regulations **,** 1969, we would have to read the dictum of the Apex Court therein and then the consequence would be the same as ordered by the learned single Judge. 9. We have heard the learned counsel on both sides and with their consent are disposing of this appeal at this stage itself. - 10.The first issue to be decided is what rules or regulations would apply. Ext.P8 refers to Rules **,** 1960 wherein the learned counsel appearing for the Board submits that reference was misconceived in as much as the Regulations **,** 1969 were in full force and regulation 19 would have applied. - 11.To consider the same, it would be better to quote Rule 18 of the Kerala W.A. 1435/2017 5 Civil Service (Classification, Control & Appeal) Rules, 1960 and Regulations 19 and 40 of the Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations **,** 1969. ## **“Rule 18 of the Kerala Civil Service (Classification, Control & Appeal) Rules, 1960** - **“18. Special Procedure in certain cases** -Notwithstanding anything contained in rules 15, 16 and 17, (i) where a penalty is imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge: or (ii) where the Disciplinary Authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Government is satisfied that in the interest of the security of the State it is not expedient to follow such procedure; the Disciplinary Authority or the Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon as he deems fit: Provided that before passing such orders under clauses (i) and (ii) the Commission shall be consulted in cases where such consultation is necessary under the rules: [Provided further that where a Government W.A. 1435/2017 6 servant is convicted on a criminal charge by a criminal court and sentenced to imprisonment and/or with fine- (a) he shall be dismissed or removed from service by invoking the provisions contained in item (a) of the second proviso to clause (2) of Article 311 of the Constitution of India irrespective of the fact that an appeal is pending or that the execution of sentence is suspended in respect of the said conviction, (aa) before taking final decision in the matter, factors including the conduct of the employee, gravity of misconduct, impact of misconduct on the administration, and other extenuating circumstances, if any, shall be taken into account by the Government for taking its own decision as to whether the Government servant is to be dismissed or removed from service or not. If it is decided to dismiss or remove the Government servant from service, he shall be given reasonable opportunity to show cause why his services should not be dismissed or removed. Before passing final orders as per clause (a) above, the Commission shall also be consulted, and (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 W.A. 1435/2017 7 have been entitled had he been in service: Provided also that in case where conviction is on a summary trial for petty offences and the sentence is for a fine upto rupees Two Thousand only such conviction shall not be treated as a conviction for the purpose of this rule and for the entry into service or retention in service as the case may be.] **Regulations 19 and 40 of the Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations, 1969** “ **19-Special procedure in certain cases** Notwithstanding anything contained in regulations 16, 17 and 18. (i) Where a penalty is imposed on a Board employee on the ground of conduct which had led to his conviction on a criminal charge or; (ii) Where the disciplinary authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said regulations; or (iii) Where the State Government for reasons to be recorded in writing is satisfied that in the interest of the security of the State it is not expedient to follow such procedure. The disciplinary authority may consider the circumstance of the case ad pass such orders thereon as it deems fit.” W.A. 1435/2017 8 ## **40-Miscellaneous** All disciplinary proceedings now being conducted either by Board or Government according to the rules in the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 adopted by the Board in its order No.BS3-1004/59/31-10-'60 shall be valid in all respect and shall not be vitiated by these regulations which shall however supercede all the existing orders on the matter. 12.The learned counsel appearing for the appellants submits that prior to 1969, by Board's order dated 31.10.1960 the Rules **,** 1960 were adopted in toto. Subsequently, by further orders of the Board, it was ordered that amendments made to the Rules **,** 1960 would automatically apply to the Board as well. This was later on changed and it was ordered that only those amendments would apply to Board which were specifically adopted by the Board. All this was in the period when the Board did not have its own regulations. In 1969, in exercise of powers conferred on the Board by virtue of section 79(c) of the Electricity (Supply) Act, 1948, the Board framed its own statutory regulations, known as the Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations **,** 1969. 13.Keeping this legislative history in mind and then reading regulation 40 quoted above, it is submitted, and in our view, rightly so, that after the W.A. 1435/2017 9 Regulations **,** 1969 came into being, the Rules **,** 1960 became wholly inapplicable. The Rules **,** 1960 was applied by adoption so long as the Board did not have its own regulation in place. Once the Boards own regulation came into force, the State Rules became inapplicable, more so, by virtue of regulation 40 quoted above. The position thus is that rule 18 of the Rules **,** 1960 would thus have no application. In other words, if a person was convicted by the criminal court, it is not that rule 18 of the Rules **,** 1960 that would apply. Rather, the position is covered by regulation 19 of Regulations **,** 1969. - 14.If we compare Rule 18 of the Rules **,** 1960 and regulation 19 of the Regulations **,** 1969, there are marked differences. Rule 18 empowers the authority to dismiss or remove an employee from service subject of course after complying with sub-rule (aa) of Rule 18. Whereas Regulation 19 gives the power to pass appropriate order on the authorities, thus making it discretionary and not virtually mandatory. Rule 18(2) of the Rules, 1960 consequent to the judgment of the Apex Court noted above, provided for reinstatement with back wages and privileges upon acquittal. But, there is no corresponding provision in the regulations of the Board in this regard. To us, upon such a contingency of acquittal taking place, it is for the authority who passed the initial order to review the initial order and pass necessary orders. But then again W.A. 1435/2017 10 there is a difference. The order that would be passed under regulation 19 would be discretionary in the sense as against rule 18(b) of the Rules, 1960, where reinstatement with back wages is mandatory, whereas under regulation 19 of Regulations 1969, the disciplinary authority can consider the circumstance of the case and pass such orders as it deems fit. 15.For example, where the act of a person himself created the liability though reinstatement may be ordered, it may not be with full back wages. Whether reinstatement has to be with full back wages or not is something that has to be provided by individual service rules. For even the Constitution does not provide for this contingency. A reference to Article 311(2)(a) would show that all that it provides is that if an employee has been convicted by a criminal court then disciplinary proceedings and issuance of show cause is not required. Though in judgments of the Apex Court including the one referred above, the Apex Court has held that if a person is dismissed only on the ground of being convicted then, upon acquittal, he should be reinstated with full back wages. But this depends upon the statutory service rules. 16.Upon this line of legal reasoning, we may examine the first contention of the learned counsel for the Board. The Rules, 1960 not being applicable, the Boards regulations had to be looked into. He rightly W.A. 1435/2017 11 submits that a reference to the Rules **,** 1960 in Ext.P8 was wrong. But the power nevertheless was there in Regulation 19 of the Regulations **,** 1969 and hence the exercise of powers cannot be questioned. If the writ petitioner was aggrieved, he ought to have challenged his dismissal on the ground that regulation 19 does not provide for mandatory dismissal and as such, there has to be a consideration of the matter which could only be after notice. But we are not going into this controversy as we have indicated that the Rules, 1960 would not apply once the Board's Regulation 1969 came. The power to take action in case of conviction in criminal case not being contained in regulation 19, the dismissal of the petitioner cannot now at this distant point of time be questioned. A wrong mention of a provision, power being there, would not vitiate the order. From this we have to see what happens upon acquittal. Once the only ground for dismissal was a conviction, then upon acquittal, there cannot be anything but reinstatement. Unfortunately, the Board regulations does not provide for this. In fact there is no provision for such a contingency. But that, in our view, would not affect in any manner the right of an employee to be reinstated. Such a power will have to flow from regulation 19 itself, which is the power to punish. If the authority has power to punish, he would certainly have the authority to review the order of punishment upon happening of an event, unless a contrary W.A. 1435/2017 12 intention is to be found in other parts of the statute. 17.We are thus of the view that the submission of the learned counsel for the appellants that the power to reinstate would not flow from rule 18 of the Rules, 1960 but only from regulation 19 of the Regulations, 1969 is correct and has to be accepted. That being so, it follows that the view taken by the learned single Judge in ordering reinstatement with full back wages with reference to rule 18 of the Rules, 1960 cannot be held to be correct. The learned single Judge thus was wrong in allowing the writ petition 18.However, we would not leave the matter at this stage. Reinstatement being the right, the only question left is with regard to back wages and benefits. Ordinarily we would have remanded the matter to the authorities who took the decision under regulation 19 to decide this issue. But, as we have the facts before us and the matter has been argued in extenso, we would not like to further extend the miseries of the employee. The employee by virtue of the interim order passed by the learned single Judge had already been reinstated. We have already noticed the judgment of the Appellate Court in the criminal appeal where this Court clearly noted that the writ petitioner was wrongly convicted and he was honourably acquitted. These findings clearly indicate that the prosecution was wrong from the beginning and if that be so, why should W.A. 1435/2017 13 the employee suffer. 19.In the facts as aforesaid though we have found the learned single Judge to be wrong in law, in fact we would not interfere. We would thus uphold the view of the learned single Judge confirming his reinstatement with full back wages. This appeal would thus stand disposed of. We would grant three months time to the Board to pay full back wages to the writ petitioner as may be admissible. **Sd/-** **NAVANITI PRASAD SINGH, CHIEF JUSTICE** **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** vps 29/7