Manickan P. v. Kerala State Electricity Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY ,THE 05TH DAY OF FEBRUARY 2019 / 16TH MAGHA, 1940** ## **WP(C).No. 26703 of 2013** ## **PETITIONER/S:** **MANICKAN P., AGED 55 YEARS,** **S/O.PONNAN, SUB-ENGINEER, KODUVAYOOR ELECTRICITY SUB DIVISION, KODUVAYOOR, RESIDING AT KALLOTTUKULAM, KAKKAYUR P.O., KODUVAYOOR, PALAKKAD.** **BY ADV. SRI.U.BALAGANGADHARAN** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD VIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004, REPRESENTED BY ITS SECRETARY.** - **2 THE CHAIRMAN KERALA STATE ELECTRICITY BOARD, VIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.** - **3 THE CHIEF ENGINEER HRM KERALA STATE ELECTRICITY BOARD, VIDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695004.** - **4 THE EXECUTIVE ENGINEER ELECTRICAL DIVISION CHITTUR, KERALA STATE ELECTRICITY BOARD, CHITTUR, PALAKKAD-678101.** **BY ADVS. SRI.K.S.ANIL, SC, KSEB SRI.M.K.THANKAPPAN SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 26703 of 2013** 2 ## **J U D G M E N T** Petitioner, who was working as a Sub Engineer, was placed under suspension as per Ext.P1 order dated 10.12.1999 on allegation that he demanded and received illegal gratification of Rs.200/-. The Vigilance and Anti Corruption Bureau had arrested him on 07.12.1999 and thereafter he was remanded in custody. The suspension was ordered with effect from 07.12.1999. Thereafter, as per Ext.P2 order dated 21.03.2003 he was reinstated. Whileso, he was convicted and sentenced by the criminal court in C.C.No.12/2001 by the Enquiry Commission and Special Judge, Kozhikode, as per judgment dated 17.06.2005. Consequent to the conviction, petitioner was dismissed from service as per Ext.P4 order dated 02.08.2005. In the meanwhile, disciplinary action was initiated against him. However, in view of the conviction and subsequent dismissal, further **WP(C).No. 26703 of 2013** 3 departmental enquiry proceedings were dropped as per Ext.P5 order. Thereafter the petitioner was acquitted by this Court as per Ext.P6 judgment dated 12.01.2011 in Crl.A.No.1104 of 2005. Petitioner thereupon requested for reinstatement. As per Ext.P7 order dated 31.10.2011, petitioner was readmitted to service on condition that he shall not be eligible for any back wages for the period from the date of suspension till the date of his re-admission and the same would not count for any service benefits and that he shall join as junior most Sub Engineer. Petitioner submitted a representation before the Chief Engineer and thereafter petitioner has filed this writ petition challenging Ext.P7 order to the extent it denies the backwages as well as limits the service benefits during the period of suspension till his readmission to the duty for any service benefit. He is also aggrieved by the direction to rejoin duty as junior most Sub Engineer. Petitioner points out that his juniors were already promoted as **WP(C).No. 26703 of 2013** 4 Assistant Engineers as per Ext.P3 order. 2. The respondents have filed a counter affidavit stating that the appropriate authority has already considered the question regarding the regularisation of the period of his absence. According to the respondents, petitioner's acquittal was not honourable. According to them a _prima facie_ case was established against the petitioner based on which he was placed under suspension and therefore his case was considered under Rule 56B(3) of Part I KSR and competent authority found that his suspension was not wholly unjustified. It is also stated that prosecution could not prove the case beyond reasonable doubt and therefore, the acquittal was not an honourable acquittal and hence he was not acquitted of the blame. He is not therefore entitled to backwages or service benefits. According to them, Rule 57 does not attract in this case. 3. The learned counsel for the petitioner relied on the judgment of this Court in W.P. **WP(C).No. 26703 of 2013** 5 (C).No.22821 of 2016, **Gangadharan C. v. State of Kerala and Others** [2009 (1) KHC 664], **KSEB Ltd. Tvm and Others v. Damodaran P.** [2017 (4) KHC 141] etc., and argued that the petitioner's acquittal was on merits and therefore, he is entitled to the entire service benefits as if he continued in service. 4. The learned Standing Counsel relied on the judgment of Apex Court in **Radhakrishnan C.R. v. State of Kerala and Others** [2017 (3) KHC 292] where the Apex Court held that in a case where employee was not fully exonerated or was not given an honourable acquittal, his claim for full service benefits cannot be allowed. In that case it was found that the criminal court had acquitted the petitioner therein on the ground that the prosecution failed to conclusively prove the guilt of accused beyond all reasonable doubt and therefore the benefit of doubt has to be given to the accused. Relying on the judgments of the Apex Court in **Ponnamma v. State of Keral** a 1997 (1) KLT 720, **Appukuttan v. State of** **WP(C).No. 26703 of 2013** 6 **Kerala** [2001 (2) KLT 45], , **Kerala State Handloom Development Corporation Ltd. v. Nanu** [2002 KHC 952], etc., the counsel for the respondents argued that petitioner is not entitled to back wages. 5. As pointed out by the learned counsel for the petitioner, a reading of Ext.P6 judgment of this Court in Crl.Appeal would show that except for a sentence occurring in paragraph 36, to the effect that prosecution has not proved its case beyond reasonable doubt there is no finding or conclusion that petitioner's acquittal was on benefit of doubt. After an elaborate discussion and analysis of evidence on record this Court found that the prosecution evidence was inconsistent regarding the acceptance of the bribe by appellant. The contention raised by the appellant that the money was thrust in his pocket was found to be supported by the evidence adduced in the case. Therefore, this Court fount it difficult to accept the evidence adduced by prosecution that appellant accepted bribe. Therefore, **WP(C).No. 26703 of 2013** 7 the contention that the petitioner was acquitted on granting the benefit of doubt cannot be correct. Petitioner is not acquitted giving benefit of doubt. Therefore the regularisation of the period of his absence as non-duty without the benefit of service and his re-admission as the juniormost Sub Engineer are harsh. 6. It has been consistently held that when the acquittal is honourable, the employee would be entitled to all service benefits. The aforesaid judgments were followed in the judgment in W.P. (C).No.22821 of 2016 in which the claim of the employee for backwages was upheld. Even though, the learned counsel appearing for the Board relied on the judgment of the Apex Court in **K.Ponnamma v. State of Kerala** [(1997) 9 SCC 36] where the Apex Court upheld the denial of backwages on acquittal, it is seen that after he was acquitted, the departmental enquiry **w** as conducted. In the present case, the departmental enquiry was dropped. The judgment will not apply in **WP(C).No. 26703 of 2013** 8 the circumstances of the case. In **Appukuttan Pillai** 's case (supra) the employee was a provisional hand at the time of his suspension. His acquittal was on accepting his plea of self defence. In **Nanu** 's case (supra) the acquittal was on benefit of doubt. 7. In **Gangadharan** 's case (supra), this Court held that principles contained in Rule 57 will apply when an officer is reinstated on honourable acquittal and he would be entitled to full pay and allowances for the period of suspension as well as the period of absence till his readmission treating the period as duty for all purposes. In the judgment in **Damodaran** 's case (supra) also the Division Bench of this Court found that the employee was entitled to back wages on his re-instatement on acquittal. The respondents considered the case of petitioner as if the acquittal was on benefit of doubt and not honourable. In the above circumstance, the orders Exts.P7 and P10 to the extent it denies service benefits to petitioner for the period of absence from the date of **WP(C).No. 26703 of 2013** 9 suspension and denies promotion are set aside. The respondent Board shall pass fresh orders on the question of regularisation of the period of absence and to grant him the consequential benefits within a period of 'three months' from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 26703 of 2013** 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER OF SUSPENSION NO.GB2/DA-3/99-2000 DATED 10.12.1999 ISSUED BY 4TH RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF ORDER NO.GB2/DA3/992000/129 DATED 21.3.2003 ISSUED BY 4TH RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE ORDER ENTD.ON EB1(A)/0172/AE(ELE.) 05 OF THE 3RD RESPONDENT DATED 6.6.2005.** **EXHIBIT P4 A TRUE COPY OF THE ORDER EBVS/7/5/99/877 DATED 2.8.2005 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF THE ORDER GM-3/992000/2808 DATED 13.12.2005 ISSUED BY 4TH RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT IN CRIMINAL APPEAL NO.1104 OF 2005 DATED 12.1.2011 OF THIS HON'BLE COURT.** - **EXHIBIT P7 A TRUE COPY OF THE PROCEEDINGS VIG/BI/5072/99/2236 OF THE 2ND RESPONDENT DATED 31.10.2011.** - **EXHIBIT P8 A TRUE COPY OF THE ORDER ENDT.ON EBVS.7/5/99/1097 DATED 16.11.2011 OF 3RD RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF THE REPRESENTATION DATED 20.12.2012 OF THE PETITIONER ADDRESSED TO 3RD RESPONDENT.** - **EXHIBIT P10 A TRUE COPY OF ORDER NO.EBVS7/5/59/339 DATED 24.2.2013 ISSUED BY THE 3RD RESPONDENT.**