Kuttappan Nair v. Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 19TH DAY OF JUNE 2019 / 29TH JYAISHTA, 1941** ## **WP(C).No.6447 of 2015** ## **PETITIONER:** **KUTTAPPAN NAIR AGED 65 YEARS RESIDING AT SINI NIVAS, THIRUMARADY P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT,PINCODE 686662.** **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVANAM, PATTOM, TRIVANDRUM, PINCODE 695004.** - **2 THE CHIEF ENGINEER HRM KERALA STATE ELECTRICITY BOARD VYDHYUTHI BHAVANAM, PATTOM TRIVANDRUM, PINCODE 695004.** - **3 THE DIRECTOR FINANCE CORPORATE OFFICE KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVANAM, PATTAM, TRIVANDRUM, PINCODE 695004.** - **4 THE EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD,** - **ELECTIRCAL DIVISION, MUVATTUPUZHA, ERNAKULAM DISTRICT, PINCODE- 686673.** - **5 CHIEF INTERNAL AUDITOR KERALA STAE ELECTICITY BOARD VYDHYUTHI BHAVANAM, PATTAM, TRIVANDRUM, PINCODE 695004.** **BY ADVS. SRI.K.S.ANIL, SC, KSEB SMT.A.G.ANEETHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).No.6447/15 2 ## **JUDGMENT** 1. This writ petition is filed challenging Exhibit P5 order and seeking directions to the respondents to treat the entire period of suspension suffered by the petitioner as duty and to grant the benefits thereof. It is submitted that the petitioner had been placed under suspension by order dated 20.12.2002, on being arrested by the Vigilance and Anti-corruption Bureau. A criminal case was registered against him. The Enquiry commissioner and Special Judge, by judgment in C.C.No.12/2003, found that the petitioner was not guilty of charges levelled against him and acquitted him. Thereafter, the issue of treating the period of suspension was considered and Exhibit P1 order dated 29.8.2006 was passed directing that the period of suspension shall be treated as eligible leave. The order had been passed after considering the case file and the judgment by which the petitioner had been acquitted. By Exhibit P2 proceedings dated 30.12.2006, it was held that the Leave Without Allowances for 351 days from 29.3.2002 to 14.3.2003 will not count for service benefits, on the ground W.P.(C).No.6447/15 3 that the petitioner had eligible leave only for 161 days. Therefore it was ordered that 351 days will be Leave Without Allowance and that period will not be counted for any benefits. On that ground, the subsistence allowance drawn by the petitioner during the period of suspension was sought to be recovered from him. It is stated that, as a matter of fact, the recovery was effected from his DCRG as well. 2. Exhibit P2 order and the proceedings ordering recovery of subsistence allowance were challenged before this Court in W.P.(C).No.3481 of 2008. By Exhibit P3 judgment dated 4.3.2014, the said writ petition was disposed of allowing the prayers and setting aside Exhibits P3, P5 and P6, which were the proceedings dated 30.12.2006 (Ext.P2 herein), notice dated 14.2.2007 and order dated 29.2.2007. The petitioner was permitted to move the authorities for return of amounts deducted from his DCRG on the basis of Exhibit P2 herein. When the amounts were not returned to the petitioner, the petitioner again approached this Court and the said writ petition was also disposed of by Exhibit P4 judgment directing W.P.(C).No.6447/15 4 the 2[nd] respondent to consider and pass orders on the request made by the petitioner for refund of amount recovered from his DCRG within six weeks. 3. It is stated that Exhibit P5 order was thereafter rendered on 30.12.2014 reiterating that since 351 days was treated as Leave Without Allowance, the petitioner would not have been entitled to subsistence allowance under the Payment of Subsistence Allowance Act, 1972 for those days. It is stated that the Accounts Officer was directed to verify whether the recovery of subsistence allowance was in conformity with the provisions of law and if not, to refund the same to the petitioner. The said order is challenged by the petitioner contenting that in terms of the Payment of Subsistence Allowance Act, the petitioner would be entitled to the subsistence allowance for the period spent under suspension and the said amount could not have been recovered even in view of Exhibit P1 order treating the period as eligible leave. It is contended that even if the portion of the leave is treated as Leave Without Allowance, the petitioner would not be liable W.P.(C).No.6447/15 5 to refund the amount already drawn as subsistence allowance. It is further contended that in view of Exhibit P3 judgment, the petitioner is entitled to treat the entire period as eligible leave as ordered in Exhibit P1. The learned counsel for the petitioner places reliance on a decision of this Court in **Joseph K.J. v. Director of Treasuries and others** [1996 KHC 569] and contends that where the criminal changes and the disciplinary proceedings have ended in acquittal, the period of suspension should be treated as duty for all purpose. 4. A counter affidavit has been placed on record by the 2[nd] respondent wherein it is specifically stated that pursuant to Exhibit P5, the issue has been considered and the amount of Rs.98,847/-, which had been recovered from the petitioner's DCRG as subsistence allowance paid in excess had been refunded to the petitioner on 15.7.2008. It is stated that the request of the petitioner in Exhibit P8 representation was to treat the period of suspension as duty and to grant all service benefits due thereof. It is stated that the petitioner had not been acquitted of blame honorably and that the acquittal was W.P.(C).No.6447/15 6 only on account of the fact that the witness had turned hostile. It is, therefore, contented that the entire aspects of the matter had been considered while passing Exhibit P1 order and since the period of suspension was regularised as eligible leave, the petitioner would be entitled for payment of wages only in respect of the leave he had to his credit and the further period was liable to be treated as Leave Without Allowance and the petitioner would therefore not be entitled to payment of wages for the entire period of suspension, since Exhibit P1 order stands affirmed by this Court. 5. Having considered the contentions advanced, I am of the opinion that Exhibit P1 is a reasoned order, which considers the factual aspects of the matter, including the judgment of the Enquiry Commissioner and Special Judge in the criminal case charged against the petitioner. It has been ordered that the period of suspension shall be treated as eligible leave. The only reasonable conclusion is that the petitioner would be entitled to payment of wages for the leave which stands to his credit as on the date on which Exhibit P1 order is passed. The W.P.(C).No.6447/15 7 petitioner's challenge in the earlier round of litigation was against orders directing that his subsistence allowance would be withdrawn on account of the fact that a portion of the period spent on suspension was treated as leave without allowance. This Court in Exhibit P3 had set aside the orders stating that period of LWA would not count for any purpose and the order by which subsistence allowance drawn by the petitioner was ordered to be recovered. However, Exhibit P1 has been upheld in Ext.P3 judgment also. In the above view of the matter, I am of the opinion that the petitioner would not be entitled to claim full wages in respect of the period spent under suspension. With respect to the amount of subsistence allowance which had been recovered from the petitioner on the strength of the order dated 30.12.2006, the notice dated 14.02.2007 and the order of the Chief Engineer dated 28.9.2007, the said amount had already been refunded to the petitioner in July 2008. 6.I am of the opinion that the reliefs granted in Exhibit P3 judgment have already been extended to the petitioner. The W.P.(C).No.6447/15 8 further prayer that the period of suspension is to be regularised as duty and that the wages due are to be paid in respect thereof cannot be accepted in view of the fact that Exhibit P1 order is not under challenge. The eligible leave due to the credit of the petitioner has been given credit to and the rest of the period has been treated as leave without allowance. In the above view of the matter, the further claim raised in the writ petition cannot be allowed. 7. The learned counsel for the petitioner submits that the petitioner may be permitted to withdraw the writ petition with liberty to challenge Exhibit P1. I am of the opinion that since Exhibit P1 is an order passed in the year 2006 and since two writ petitions have been filed by the petitioner thereafter without challenging Exhibit P1, the petitioner cannot now be permitted to challenge Exhibit P1, that too after 13 years. The writ petition is, therefore, closed. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.6447/15 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**EXHIBIT P1**|**EXT.P1 TRUE COPY OF ORDER**| |---|---| ||**NO.EBVS.2/84/2001/622 DATED 29.08.2006**| ||**ISSUED BY 2ND RESPONDENT TO THE**| ||**PETITIONER.**| |**EXHIBIT P2**|**EXT.P2 TRUE COPY OF ORDER NO.EB 4(A)**| ||**/LWA/73 DATED 30.12.2006 ISSUED BY THE**| ||**2ND RESPONDENT TO THE PETITONER.**| |**EXHIBIT P3**|**EXT.P3 TRUE COPY OF JUDGMENT DATED**| ||**04.03.2014 OF THIS HONOURABLE COURT IN**| ||**WPC NO.3481/2008-(M).**| |**EXHIBIT P4**|**EXT.P4 TRUE COPY OF JUDGMENT DATED**| ||**26.08.2014 OF THIS HONORABLE COURT IN**| ||**WPC NO.22223/2014-(C).**| |**EXHIBIT P5**|**EXT.P5 TRUE COPY OF PROCEEDINGS**| ||**NO.EBVS. 2/84/2001/948 DATED 30.12.2014**| ||**ISSUED BY 2ND RESPONDENT TO THE**| ||**PETITONER.**| ||**True copy**| **PS to Judge**