KERALA STATE ELECTRICITY BOARD LTD. vs C.K. JOSEPH

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938 WA.No. 2491 of 2015 () IN WP(C).759/2012 -----------------------------------------AGAINST THE JUDGMENT IN WP(C) 759/2012 of HIGH COURT OF KERALA DATED 20-05-2015 ## APPELLANTS/RESPONDENTS: ------------------------------------------ 1. KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM-695 004. 2. THE CHAIRMAN KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, PATTOM P.O., THIRUVANANTHAPURAM-695 004. 3. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004. 4. THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, ERNAKULAM, KOCHI-682 018. 5. THE EXECUTIVE ENGINEER ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, MATTANCHERRY, KOCHI-682 002. BY ADVS.SRI. A.AHAMMED SRI PULIKOOL ABUBACKER, SC, KSEB SMT. A.G.ANITHA SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED ## RESPONDENT/PETITIONER: --------------------------------------- C.K.JOSEPH ASSISTANT ENGINEER (RETIRED), KERALA STATE ELECTRICITY BOARD, HOUSE NO.C.C.18/1622, CHERUTHURUTHY HOUSE, ESI ROAD, PALLURUTHY, KOCHI-682 026. BY ADV. SRI.S.PRASANTH (AYYAPPANKAVU) ADV. SMT.VARSHA BHASKAR ADV. SRI.N.SUGATHAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-1-2017, THE COURT ON 08-02-2017 DELIVERED THE FOLLOWING: ## **MOHAN M. SHANTANAGOUDAR, CJ & ANIL K. NARENDRAN, J.** **--------------------------------------------------** ## **W.A.No.2491 OF 2015** **-------------------------------------------------DATED THIS THE 8[th] DAY OF FEBRUARY, 2017** ## **JUDGMENT** ## **ANIL K. NARENDRAN, J.** This Writ Appeal arises out of the judgment of the learned Single Judge dated 20.5.2015 in W.P.(C). No.759/2012. The said Writ Petition was one filed by the respondent herein seeking a writ of certiorari to quash Ext.P13 order dated 13.10.2011 issued by the 3[rd] appellant herein and seeking a writ of mandamus commanding the appellants to treat the period of suspension of the respondent from 9.9.1998 to 4.2.2000 and the period of his absence from service from 2.11.2001 to 24.2.2005 as duty and to grant him all consequential benefits. 2. The reliefs sought for in the Writ Petition were opposed by the appellants by filing a counter affidavit. 3. After considering the rival contentions, the W.A.No.2491/15 ## **-:2:-** learned Single Judge by the impugned judgment dated 20.5.2015 allowed the Writ Petition setting aside Ext.P13 order issued by the 3[rd] appellant and declared that the respondent will be entitled to full pay and allowances for the period of his absence from 9.9.1998 to 4.2.2000 on account of suspension and from 2.11.2001 to 24.2.2005 on account of conviction. The said declaration of the learned Single Judge is based on a finding that the denial of full pay and allowances to the respondent for the period of his absence on account of suspension as well as conviction are illegal. Accordingly, the appellants were directed to pay all the monetary benefits due to the respondent within a period of three months from the date of receipt of a copy of the judgment. There was also a further direction to review and refix the pensionary benefits of the respondent consequent to such regularisation. 4. Feeling aggrieved by the judgment of the learned Single Judge, the appellants/respondents are before this Court in this appeal. W.A.No.2491/15 ## **-:3:-** 5. We heard the arguments of the learned Standing Counsel for the Kerala State Electricity Board representing the appellants/respondents and also the learned counsel for the respondent/writ petitioner. 6. The pleadings and materials on record would show that the respondent while working as Sub Engineer in the Electrical Section, Kannamali was arrested on 9.9.1998 at his Office by the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, Ernakulam in connection with a trap arranged against him. Consequent to the arrest, the respondent was placed under suspension by Ext.P1 order dated 11.9.1998 with effect from 9.9.1998 under Rule 16(4) of the Manual for disciplinary proceedings. 7. The allegation levelled against the respondent was that he had illegally disconnected power supply to the premises of one Lawrence with Consumer No.3435 of Kannamali Electrical Section and demanded 250/- as bribe₹ for restoring the supply. Accordingly, on 9.9.1998, the said Lawrence paid the respondent a sum of 250/- as bribe,₹ W.A.No.2491/15 ## **-:4:-** which amount was recovered by the Deputy Superintendent of Police, Vigilance and Anti Corruption from the drawer of his table in his office room. It was based on the report of the Deputy Superintendent of Police, the respondent was suspended from service by Ext.P1 order. Later, the respondent was reinstated in service as per order dated 4.2.2000 and he rejoined duty on 5.2.2000. 8. The crime registered against the respondent as C.C.No.35/2000 ended in his conviction by the judgment dated 29.10.2001 of the Enquiry Commissioner and Special Judge, Thrissur, in which he was found guilty under the provisions of the Prevention of Corruption Act. Accordingly, he was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹25,000/-. On such conviction, the respondent was dismissed from service by Ext.P2 order dated 2.11.2001. 9. Challenging the conviction and sentence, the respondent filed Crl.A.No.1062/2001 before this Court. This Court by Ext.P3 judgment dated 29.10.2004 allowed W.A.No.2491/15 ## **-:5:-** the said appeal and the conviction and sentence of the respondent was set aside and he was set at liberty. Subsequent to Ext.P3 order of acquittal, the respondent was reinstated in service by Ext.P4 order dated 16.2.2005, without prejudice to the disciplinary action pending against him. In Ext.P4 order, it was made clear that the treatment of the period spent by the respondent under suspension and dismissal shall be finalised as and when the disciplinary action initiated against him is finalised. Accordingly, the respondent rejoined duty on 25.2.2005. Later, he was promoted as Assistant Engineer as per order dated 9.11.2005 and while continuing as such, he retired from service on 31.12.2005. 10. In the meanwhile, pursuant to Ext.P1 order of suspension, the respondent was issued with a memo of charges dated 3.11.1998 alleging that he had disconnected electric connection to Consumer No.3435 of Kumbalangi Section on 29.8.1998 on the ground that the service line drawn to the consumer has no clearance to the adjacent W.A.No.2491/15 ## **-:6:-** building under construction. The respondent submitted his explanation dated 14.11.1998. 11. By a notice dated 13.4.2005, the respondent was asked to show cause against the proposal to impose the punishment of barring next increment with cumulative effect. The respondent has submitted an explanation dated 22.4.2005. After considering the said explanation, the respondent was imposed with a penalty of barring one increment without cumulative effect, vide Ext.P5 order dated 6.6.2005, and it was ordered that the period of suspension and other absence till reinstatement may be regularised by granting leave at his credit, if he desires so, or as leave without allowance, which will not count for any other purpose. 12. Feeling aggrieved by the punishment imposed in Ext.P5, the respondent filed Ext.P6 statutory appeal, which ended in dismissal by Ext.P7 order dated 5.9.2005. Against Ext.P7 order, the respondent filed a further appeal before the 3[rd] appellant herein, which also ended in dismissal by W.A.No.2491/15 ## **-:7:-** Ext.P8 order dated 19.4.2006. The said order was under challenge in Ext.P9 review petition filed before the Board, which also ended in dismissal by Ext.P10 order dated 27.12.2006 confirming the punishment and also the order treating the period of suspension and the period of absence as eligible leave or leave without allowance. 13. The respondent filed W.P.(C).No.17965/2007 challenging Ext.P5 order insofar as it ordered that the period of suspension and other absence till reinstatement be regularised by granting eligible leave at his credit or as leave without allowance, which will not count for any purpose. He has also challenged Exts.P7, P8 and P10 orders passed by the appellate/revisional authorities to the extent those orders have confirmed that portion of Ext.P5. Therefore, admittedly, the respondent did not challenge that part of Ext.P5 order which imposed on him the punishment of barring one increment with cumulative effect and the said order of punishment has attained finality. 14. By Ext.P11 judgment dated 20.6.2011, this W.A.No.2491/15 **-:8:-** Court disposed of W.P.(C).No.17965/2007 setting aside Ext.P5 to the extent the same treats the period of suspension and the period of absence till reinstatement as eligible leave or leave without allowance. The said judgment was rendered after taking into account the mandate of Rules 56 and 57 of Part I Kerala Service Rules by which the authority competent to order reinstatement has to apply his mind regarding the circumstances under which an Officer had to be reinstated and pass orders specifically as to how the period of absence shall be treated and also regarding pay and allowances to be paid to the Officer for the period of his absence from duty. 15. In Ext.P11 judgment, this Court noticed that the case law on the subject lays down that for deciding that question, the authority has to consider whether while passing the judgment in his favour, in appeal by the appellate court, the respondent was acquitted of blame. Such consideration is totally absent in Ext.P5 order. Accordingly, in Ext.P11 judgment, this Court directed the W.A.No.2491/15 ## **-:9:-** 3[rd] appellant to reconsider the entire issue in terms of Rules 56 and 57 of Part I KSR as also the observations in Ext.P11 judgment and pass appropriate orders after affording an opportunity of being heard to the respondent. 16. The respondent produced a copy of Ext.P11 judgment before the 3[rd] appellant along with Ext.P12 representation. After hearing the respondent, the 3[rd] appellant passed Ext.P13 order dated 13.10.2011, reiterating the earlier stand that the period of suspension and the period in between the dismissal and reinstatement can be regularised only as eligible leave at credit or as leave without allowance, which will not count for any purpose. 17. The learned Single Judge, after quoting Para.9 of Ext.P3 judgment of this Court in Crl.A.No.1062/2001 arrived at a conclusion that the respondent was acquitted as there was no material to establish the case against him and that the conviction is not set aside granting any benefit of doubt to the respondent, as alleged by the appellants. W.A.No.2491/15 ## **-:10:-** The learned Single Judge observed that, when it is found that there is no material to establish the case, it goes without saying that there was no evidence as against the respondent and in such circumstances, it can only be treated as the respondent having been acquitted of blame. 18. We are unable to agree with the said finding of the learned Single Judge. 19. A reading of Ext.P3 judgment of this Court would show that C.C.No.35/2000 registered against the respondent was one alleging commission of offence punishable under Sections 7 and 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988 alleging acceptance of ₹250/- as bribe by the respondent for restoration of electric supply to the premises of one Lawrence (PW2 in C.C.No.35/2000) with Consumer No.3435 of Kannamaly Electrical Section. 20. Though it may not be necessary for us to go to the material placed on record with the criminal court, we have perused the records to satisfy our conscience as to W.A.No.2491/15 ## **-:11:-** whether the respondent herein/accused was acquitted honourably or not. 21. It was alleged in the criminal case that the disconnection of the domestic electricity was with an intention of forcing PW2 in the criminal case to pay gratification to the accused/respondent herein. Though disconnected, the electric connection was not re-connected subsequently. The respondent took the stand that because of sagging of the electric lines, there could be danger to the consumer and also to the KSEB and therefore, the electricity was disconnected. 22. The evidence recorded in the criminal case reveal that PW5 photographer has taken photographs at the instance of the complainant and those photographs show that the line was not sagging at all. Therefore, _prima facie_ , it is clear that there was disconnection of electricity without any valid reason. 23. However, the question that was to be decided in the criminal case was as to whether the prosecution has W.A.No.2491/15 ## **-:12:-** proved that the respondent demanded any gratification from PWs.1 and 2 in the criminal case for reconnecting the electricity. 24. Since re-connection did not take place and as the respondent allegedly asked gratification, PWs.2 and 3 went to PW8 (Police Officer). Both PWs.2 and 3 have deposed that money handed over by PW8 was taken by them and they went to the office of the respondent at 3.30 pm on 9.9.1998; since the respondent was not there, they went back and returned to the office of the respondent at 5 pm once again. At that point of time, the money handed over by PW8 was placed inside the drawer of the table of the respondent as directed by the respondent. Since the respondent did not touch this money, when tested, his hands were not seen tainted, as expected by PW8. 25. The Court, while allowing Crl.A.1062/01 in favour of the respondent and acquitting him, has given the benefit of doubt in favour of the accused/respondent on the ground that the hands of the respondent were not tainted; W.A.No.2491/15 ## **-:13:-** the notes were not touched by him; PWs.2 and 3 might have kept the notes in the drawer of the table much earlier to 5 pm etc. 26. There cannot be any dispute that the prosecution in a criminal case has to prove its case beyond reasonable doubt whereas matters of the nature on hand are to be decided based on preponderance of probabilities. The Criminal Appeal filed by the accused came to be allowed by observing that the available evidence is not sufficient to establish the criminal act alleged against the respondent and that the evidence of PWs.2 and 3 are not trustworthy. Moreover, the prosecution treated PWs.2 and 3 as hostile witnesses. PWs.2 and 3 who faced the cross examination are treated hostile by the prosecutor on the ground that their evidence is not consistent with each other and there is some variation in their evidence. But on the said ground, their evidence could not be fully brushed aside. The fact remains that PWs.2 and 3 have deposed before court that they went to the office of the respondent W.A.No.2491/15 ## **-:14:-** and as per the direction of the respondent, they kept the notes in the drawer of his office table. 27. It is also not in dispute that the details and denomination of the currency that were seized from the drawer of the table of the respondent and mentioned in Ext.P6 mahazar tally with the details of notes that were handed over by PW8 to PW2, which means that it was those notes which were handed over by PW2 which were recovered from the drawer of the table of the respondent. If really the respondent is innocent, there is no reason as to why the laymen/third parties like PWs.2 and 3 are allowed inside the office premises and that too, up to the table of the respondent for the purpose of keeping the notes in the drawer of the table. 28. Hence, merely because the respondent is acquitted in the criminal case since the evidence was not sufficient for the criminal court to convict the accused, it cannot be said that the respondent is acquitted of blame. W.A.No.2491/15 ## **-:15:-** 29. Therefore, the question to be decided is as to whether an acquittal from criminal charge, that also in respect of an offence under the Prevention of Corruption Act, on the ground that the prosecution witnesses had been declared hostile can be treated as an acquittal of blame. 30. In **Deputy Inspector General of Police** v. **S. Samuthiram (2013 (1) SCC 598)** , the Apex Court held that the expressions 'honourable acquittal', 'acquitted of blame' 'fully exonerated' are unknown to the Code of Criminal Procedure or the Indian Penal Code, which are coined by judicial pronouncements. It is difficult to decide precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of the prosecution evidence and that the prosecution had miserably failed to prove the charge levelled against the accused, it can possibly be said that the accused was honourably acquitted. In the said decision, after referring to various decisions of the Apex Court, it was reiterated that mere acquittal of an employee by a criminal W.A.No.2491/15 ## **-:16:-** court has no impact on the disciplinary proceedings initiated by the Department. After considering the factual situation, the Apex Court held that the respondent therein was not honourably acquitted by the criminal court, but only due to the fact that two prosecution witnesses turned hostile and other prosecution witnesses were not examined. 31. In S.Samuthiram's case (supra), the Apex Court has referred to its earlier decision in **R. P. Kapoor v. Union of India (AIR 1964 SC 787)** , wherein it was held that, even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In S.Samuthiram's case (supra), the Apex Court has also referred to its another decision in **State of** ## **Assam and another v. Raghava Rajgopalachari (1972** **SLR 45)** , wherein the Apex Court quoted with approval the views expressed by Lord Williams, J. in **Robert Stuart Wauchope v. Emperor (1934 (61) ILR Calcutta 168)** which reads as follows; “The expression 'honourably acquitted' is one which is unknown to Court of justice. Apparently W.A.No.2491/15 ## **-:17:-** it is a form of order used in Courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term 'honourably acquitted'.” 32. In **S.Samuthiram's case (supra)** the Apex Court, after referring to its earlier decisions in R. P. Kapoor's case (supra) and Raghava Rajgopalachari's case (supra), held that, in the absence of any provision in the service rule for reinstatement, if an employee is 'honourably acquitted' by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a Criminal Court and W.A.No.2491/15 ## **-:18:-** the enquiry conducted by way of disciplinary proceeding is entirely different. Paragraph 23 of the judgment reads thus; “ **23.** As we have already indicated, in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a Criminal Court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a Criminal Court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The Court, therefore, W.A.No.2491/15 ## **-:19:-** acquitted the accused giving the benefit of doubt. We are not prepared to say in the instant case, the respondent was honourably acquitted by the Criminal Court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.” 33. In that view of the matter, Ext.P3 judgment cannot be treated as one by which the respondent herein had been acquitted of blame from the charges levelled against him under Sections 7 and 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act, 1988. 34. The learned counsel for the respondent would rely on an unreported judgment of the Division Bench of this Court dated 14.12.2016 in W.A.No.520/2014, in order to contend that the respondent is entitled to pay and allowances for the period during which he was kept out of service in connection with the criminal case/disciplinary proceedings. 35. In W.A.No.520/2014, this Court was dealing with a case in which none of the prosecution witnesses supported the case of the prosecution and all of them have W.A.No.2491/15 ## **-:20:-** pleaded that they do not have any personal knowledge about the alleged incident of the accused demanding and accepting bribe from PW1. PW1 has no case that there was a demand for payment of illegal gratification. PW1 has also not supported the case of the prosecution that the accused accepted MO1 currency note of ₹500/- from him on 29.12.1999. The only witnesses who have deposed against the accused are PWs 2 and 8 who are the Tahsildar and Deputy Superintendent of Police respectively. PW2 has deposed that MO1 currency note was lying on the floor and he took it and placed it on the table. PW2 has also admitted that MO1 currency note was first noticed by the Police and he took it from floor as per the direction of the Police. On the other hand, PW8 has deposed that MO1 note was first noticed by PW2 and that was lying on the floor. PW8 has further deposed that he has seen MO1 currency note only when it was taken by PW2 from the floor. Therefore, based on the evidence on record, it cannot be definitely concluded that the accused was at fault. W.A.No.2491/15 ## **-:21:-** Accordingly, on re-assessing the materials on record, the Division Bench found that the learned Single Judge was not justified in concluding that the appellant in W.A.No.520/2014 is not free from the blame. The decision of the Division Bench of this Court in W.A.No.520/2014 therefore cannot have any bearing on the facts and circumstances of the case on hand. 36. In **State of Kerala v. Joseph (2015(1) KLT 56)** a Full Bench of this Court held that in the case of an employee against whom disciplinary proceedings are initiated by the issuance of an order of suspension followed by his dismissal from service in terms of Rule 18(iii)(a) of the Kerala Civil Services (Classification, Control and Appeal) Rules, then, on his reinstatement in terms of Rule 18(iii) (b) he is put back in the position in which he was at the time of his dismissal from service. The employer then has to take a decision as to whether or not the disciplinary proceedings against him should continue or not. Based on the outcome of the disciplinary proceedings against the W.A.No.2491/15 ## **-:22:-** employee, the pay and allowances due to the employee during the period of his suspension will have to be determined in accordance with Chapter VII of Part I of the Kerala Service Rules. In the said decision, the Full Bench of this Court was dealing with a case in which the employee against whom disciplinary proceedings are initiated by the issuance of an order of suspension, followed by his dismissal from service in terms of Rule 18(iii)(a) of the Classification, Control and Appeal Rules, on his conviction by the criminal court. Later, he was acquitted by the appellate court giving him the benefit of doubt. Based on such acquittal, he was reinstated in service in terms of Rule 18(iii)(b) of the Classification, Control and Appeal Rules. 37. In the instant case, as we have already found, the respondent is not acquitted of blame in Ext.P3 judgment of this Court. On acquittal by Ext.P3 order of this Court in Crl.A.No.1062/2010, the respondent was reinstated in service by Ext.P4 order without prejudice to the disciplinary action pending against him. It was made W.A.No.2491/15 ## **-:23:-** clear in Ext.P4 order that the treatment of the period spent by the respondent under suspension and dismissal shall be finalised as and when the disciplinary action initiated against him is finalised. Ext.P5 order passed by the disciplinary authority imposing the respondent the punishment of barring of one increment with cumulative effect has attained finality, in the absence of any challenge made by the respondent. The challenge made by the respondent against Ext.P5 order of the disciplinary authority and also Exts.P7, P8 and P10 orders passed by the appellate/revisional authorities are limited only to regularisation of the period of suspension and other absence of the respondent till reinstatement, which was ordered to be regularised as eligible leave or as leave without allowance, which will not count for any purpose. In such circumstances, the respondent is not entitled for regularisation of his period of suspension and the subsequent absence for the period from the date on which he was dismissed from service till reinstatement, as duty. W.A.No.2491/15 ## **-:24:-** 38. On 13.1.2016, while admitting this Writ Appeal on file, this Court ordered that the direction contained in the judgment of the learned Single Judge to pay the respondent full allowances for the period from 9.9.1998 to 4.2.2000 shall remain stayed. However, the 1[st] appellant shall make payment for the period from 2.11.2001 to 24.2.2005. 39. During the course of arguments, it was brought to the notice of this Court that in terms of the said order passed by this Court, the respondent has already been disbursed with the payment for the period from 2.11.2001 to 24.2.2005. 40. Therefore, we make it clear that this judgment, setting aside the impugned judgment of the learned Single Judge dated 20.5.2015 in W.P.(C).No.759/2012, will not entitle the appellants to recover the amount already disbursed to the respondent for the period from 2.11.2001 to 24.2.2005 in terms of the interim order granted by this Court dated 13.1.2016. W.A.No.2491/15 ## **-:25:-** Subject to this observation, the challenge made by the respondent against Ext.P13 order is repelled and this Writ Appeal is allowed setting aside the impugned judgment of the learned Single Judge, thereby upholding Ext.P13 order. Sd/- **MOHAN M. SHANTANAGOUDAR, CHIEF JUSTICE** Sd/- **ANIL K.NARENDRAN, JUDGE** dsn True copy P.S. to Judge