M.A. George v. Executive Engineer, Electrical Division, Aluva and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934** ## **WP(C).No. 19637 of 2006 (K)** **---------------------------------------** **PETITIONER:** - **-------------------** **M.A. GEORGE, S/O. AUGUSTHY, SUB ENGINEER (RETD.FROM 66 KV SUB STATION, NORTH PARUR), RESIDING AT MALOTH CHIRAKAKOM, VARAPUZHA P.O., KOCHI-17.** **BY ADVS.SRI.M.V.THAMBAN, SRI.V.K.SATHYANATHAN.** **RESPONDENTS:** - **------------------------** **1. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, ALUVA.** **2. THE DEPUTY CHIEF ENGINEER, TRANSMISSION CIRCLE, KALAMASSERY.** **3. THE CHIEF ENGINEER (HRM), VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** **4. KERALA STAE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVANAM.** **5. THE CHAIRMAN, KSEB, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.** **R1 TO R5 SRI.JOSE J.MATHEIKEL, S.C, K.S.E.B.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-09-2012, THE COURT ON 03/12/2012 DELIVERED THE FOLLOWING:** **Prv.** **W.P.(C). NO.19637/2006-K:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P.1: COPY OF THE JUDGMENT DTD. 24/01/2004 IN C.C. NO.8/2001 OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR.** - **EXT.P.2: COPY OF THE MEMO OF CHARGES DT. 03/02/2004 ISSUED BY THE R.1. EXT.P.3: COPY OF THE REPORT DTD. 11/02/2005 FILED BY THE ENQUIRY OFFICER, ASST. EXECUTIVE ENGINEER.** - **EXT.P.4: COPY OF THE ORDER NO. GB/DIS. ACTION.0506.2029 DTD. 09/06/2005 ISSUED BY THE R.1.** - **EXT.P.5: COPY OF THE REQUEST DTD. 29/06/2005 FILED BY THE PETITIONER BEFORE THE R.3.** - **EXT.P.6: COPY OF THE REJECTION ORDER OF THE CHIEF ENGINEER DTD. 16/02/2006.** - **EXT.P.7: COPY OF THE APPEAL DTD. 20/04/2006 FILED BY THE PETITIONER BEFORE THE R.5. CHAIRMAN.** - **EXT.P.8: COPY OF THE ORDER NO. EB VS-D/62/99 DT. 04/12/2001. EXT.P.9: COPY OF THE LETTER NO. ESTT.III/6431/2002 DT. 09/12/2002.** - **EXT.P.10: COPY OF THE ORDER NO. EB3/LEAVE/2006-07/2107 DT. 08/11/2006 EXT.P.11: COPY OF THE OBJECTION DT. 23/11/2006 SUBMITTED BY THE PETITIONER.** - **EXT.P.12: COPY OF THE LETTER NO. EB3/PENSIO/2006-07/2242 DT. 23/11/2006 EXECUTIVE ENGINEER.** - **EXT.P.13: COPY OF THE FAX MESSAGE NO.PA-IV/PPO/31625(R) DT. 12/12/2006 ISSUED BY THE CHIEF ENGINEER (HRM).** - **EXT.P.14: COPY OF THE ORDER NO. VIG/A1/8187/06 DT. 27/12/2006. EXT.P.15: COPY OF THE G.O.(P).NO.56/1986/VIGILANCE DTD. 08/04/1986. EXT.P.16: COPY OF THE CIRCULAR NO.65/94 DTD. 26/11/1994.** ## **RESPONDENTS EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **Prv.** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.19637 of 2006 ---------------------------------------- Dated this the 3[rd] day of December 2012 ## **J U D G M E N T** Petitioner retired from service on superannuation while working as Sub Engineer in the Kerala State Electricity Board on 31/5/2003. The writ petition is filed challenging the departmental proceedings taken against the petitioner after retirement. He was suspended from service on 22/7/1999 and reinstated on 14/12/2001 and according to him, the said period of suspension ought to have been considered for the purpose of giving retirement benefits since the petitioner being exonerated by the disciplinary authority as well as the Vigilance Court. 2. According to him, he was entitled for regular promotion in the grade of Assistant Engineer in the year 2000; but no action was taken to give him the necessary promotion despite the fact that he was exonerated from the charges as per Ext.P4 proceedings. Further contention raised is that he was entitled for getting time bound higher grade on completion of 24 years. If he had been promoted as Assistant Engineer, he would have got a grade promotion at the time of his acquiring 25 years W.P.C.No.19637/2006 2 period. He has also a case that his entire gratuity has been withheld in violation of Rule 3 of Part III of Kerala State Service Rules (KS & SR) without fixing his liability within the three year period. 3. The writ petition was amended as during the pendency of the same the Chief Engineer issued Ext.P10 order treating the suspension period as eligible leave and calling upon the petitioner was asked to submit leave application for the said period. This was objected by the petitioner by issuing P11; but it is stated that By P12 order the said period of suspension is treated as leave without allowance and treating the subsistence allowance already received amounting to Rs.3,08,642/- to be adjusted towards the DCRG benefits. After making such an adjustment the KSEB had issued Ext.P13 order stating that after making such adjustments the balance amount of Rs.68,857/- is to be recovered from the petitioner. Though an appeal was filed, the same was rejected as per Ext.P14 order. Petitioner, therefore, in addition to the relief sought for for calculating the pensionery benefits treating the suspension period also as service and also claims the promotion which was due to him W.P.C.No.19637/2006 3 during the relevant period treating the period of suspension as qualifying service and further challenging the recovery of amounts of subsistence allowance which was received by him during the period of suspension. 4. Counter affidavit is filed by the 3[rd] respondent inter alia contending that the petitioner was suspended from service while working as Sub Engineer with effect from 22/7/1999 based on a report of the Vigilance and Anti Corruption Bureau regarding a case initiated against him in connection with a trap. Departmental action was also initiated against the petitioner. Thereafter, he was acquitted in the said case. Departmental action against the petitioner was finalised by the Executive Engineer by dropping further action and by treating his suspension period as eligible leave. Though appeals were filed before the Chief Engineer and also the Chairman, the same were rejected. It is the contention of the 3[rd] respondent that though the petitioner was asked to submit a application for eligible leave, he did not give any such application and therefore to avoid further delay in giving pensionary benefits the suspension period from 22/7/1999 to 14/12/2001 was treated as leave without 4 W.P.C.No.19637/2006 allowance. 5. It is the further contention that as per Government . Circular No.65/94/Fin dated 1994 once a period of suspension is converted into leave with or without allowance, recovery of the subsistence allowance has to be made and it is in pursuance of the same that the subsistence allowance of 3,08,642/- was sought to be recovered, out of which 2,39,785/- was adjusted against the admissible DCRG and the balance amount was to be recovered by filing civil suit. It is also stated that his monthly pension had been granted on 22/01/2004. It is further submitted that the allegation was that the petitioner was arrested on charges of accepting bribe from a consumer for providing service service connection. The counter affidavit also refers to the judgment of the Supreme Court in **Krishnakanth Reghunath Nhavnekar v. State of Maharashtra** [AIR 1997 SC 1434] and **Ponnamma v. State of Kerala** [(1997) 9 SCC 36] to contend that even if a person is acquitted in the criminal case or in departmental procedures the period of suspension cannot be treated as on duty. They also referred to the judgment in **Muhammed Easa Sahib v. DIG of Police** [1990 (2) KLT 462] to contend that W.P.C.No.19637/2006 5 even if a person is acquitted giving the benefit of doubt, he would not be entitled to full amount of pay and allowances during the period of suspension. 6. In regard to the claim for giving promotions. it is contended that since the petitioner had already retired from service, he was not entitled for any promotion. 7. The question of consideration is two fold. One is whether the petitioner is entitled to claim the suspension period as on duty for the purpose of pensionary benefits and secondly whether the department was entitled to recover the subsistence allowance already paid to him from the DCRG. 8. In regard to the period of suspension, it is not in dispute that the departmental authorities have not accepted the plea of the petitioner to treat the same as qualifying service for the purpose of pension. There is no dispute about the fact that the law on the point is very clear even if a person is acquitted by the criminal court, it is for the disciplinary authority to consider whether he should be exonerated from all the charges levelled against him. On a perusal of Ext.P5, it could be seen that after conducting the disciplinary proceedings on the charges levelled W.P.C.No.19637/2006 6 against him, the authority found that the petitioner is exonerated from all the charges levelled against him. In regard to the suspension period, there was a direction to regularise the said period. But, on account of the facts that the petitioner did not apply for eligible leave and when a claim was made by the petitioner to treat the said period as duty, Ext.P6 was issued clearly indicating that the said period cannot be treated as duty for all purposes and to pay full allowances during the suspension period. 9. It is clear from the materials on record that there was a clear finding in Ext.P4 that the petitioner was exonerated from all the charges levelled against him and the period of suspension is treated as eligible leave. Therefore, it cannot be disputed that the said period can also be considered for the purpose of computing qualifying service for granting pension. 10. The next question is whether the subsistence allowance paid can be recovered. This matter is covered by the judgment of a Division Bench of this Court in **Kerala State Warehousing Corporation & Others v. Pauly John.T** [2006 (2) ILR Kerala 653] wherein a Division Bench of this Court, after W.P.C.No.19637/2006 7 referring to Rule 56B of Part I of KS & SR came to a finding that the very principle of subsistence allowance is to ensure that the person is not kept high and dry, all of a sudden, without job and without earnings. What is paid is not salary; but only an allowance sufficient enough for the employee to tide over the difficult period. The Division Bench was considering an appeal filed against the judgment of the learned Single Judge setting aside an order passed by the Government to recover the subsistence allowance from an employee after reinstating him in service. In the appeal, the judgment of the learned Single Judge was confirmed. 11. Another Single Judge of this Court in **Thomas v. Deputy Director of Education** [2005(3) KLT 872] also opined that the recovery of subsistence allowance already paid to the employee in suspension is illegal. 12. Viewed in the light of the above judgments of this Court, I am of the view that Exts.P12 and P13 to the extent it directs recovery of the subsistence allowance from the DCRG of the petitioner and to recover the balance amount is bad in law and is liable to be set aside. W.P.C.No.19637/2006 8 13. In the result, the writ petition is allowed as follows: i) Exts.P12 and P13 are quashed. ii) The period of suspension of the petitioner shall be treated as qualifying service for the purpose of computing pension. iii) The claim for notional promotion is rejected iv) The amount recovered from the petitioner from DCRG as refund of the subsistence allowance has to be refunded to the petitioner within a period of two months from the date of receipt of this judgment failing which the said amount will carry interest @ 10% per annum. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr //True Copy// PA to Judge W.P.C.No.19637/2006 9 W.P.C.No.19637/2006 10