Muhammad Rafi C M v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 8[TH] DAY OF JULY 2024 / 17TH ASHADHA, 1946** ## **WP(C) NO. 24909 OF 2022** ## **PETITIONER/S:** **MUHAMMAD RAFI C M,AGED 35 YEARS** **SON OF ABDURAHIMAN, L G ARABIC TEACHER, ALP SCHOOL, PULLALUR, NARIKKUNI (VIA), KOZHIKODE, KERALA 673 585 RESIDING AT CHERACHORAMEETHAL HOUSE, PARANNOOR P.O, KOZHIKODE, KERALA- 673585** **BY ADVS. REKHA VASUDEVAN P.PRATHYUSHA ROJIT ZACHARIAH** ## **RESPONDENT/S:** - **1 STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM- 695 001** - **2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, JAGATHY, THIRUVANANTHAPURAM 695 014** - **3 THE ASSISTANT EDUCATIONAL OFFICER, AEO OFFICE, KODUVALLY BUS STAND LN, KODUVALLY- 673585** - **4 THE MANAGER, A.L.P. SCHOOL, PULLALOOR, KOZHIKODE- 673585** - **BY ADV R.K.MURALEEDHARAN** **ADV PREMCHAND R NAIR- Sr.GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALY HEARD ON** - **08.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.C No. 24909 of 2022 2 ## **JUDGMENT** The petitioner has approached this Court challenging Ext.P8 proceedings of the 4[th] respondent Manager and Ext.P11 order passed by the Government by which Ext P8 was confirmed. As per Ext.P8, the period of suspension of the petitioner consequent to the involvement of the petitioner in a criminal case was regularized as eligible leave, despite the fact that the petitioner was acquitted from all the charges as per Ext.P4 judgment passed by the competent criminal court. Ext.P11 is the order passed by the Government in the revision petition submitted by the petitioner against Ext.P8. 2. The facts which led to the filing of this writ petition are as follows: The petitioner was working as a full-time Arabic Teacher in the school managed by the 4[th] respondent. He was appointed with effect from 01.06.2005. While so, the petitioner was arrested in connection with Crime No.488/2019 of Kunnamangalam Police Station registered for the offences punishable under Section 370 of IPC and Section 9(c) read with Sections 7,12 and 11(i) of Protection of Children from Sexual W.P.C No. 24909 of 2022 3 Offences Act. He was remanded to judicial custody and consequent to the same, the petitioner was suspended from service with effect from 08.07.2019. Ext.P1(a) is the order by which the suspension was further extended beyond 15 days. Thereafter, the petitioner was served with a memo of charges issued by the 4th respondent, as evidenced by Ext.P2. While the disciplinary proceedings were pending, the trial of the petitioner in the criminal case was concluded and as per Ext.P4 judgment, the petitioner was acquitted as the two witnesses examined by the prosecution did not support the prosecution. On the basis of Ext.P4 order of acquittal, Ext.P5 request was made by the petitioner for reinstatement and the same was considered by the Manager as per Ext.P6 by which, the disciplinary proceedings were dropped and the petitioner was reinstated in service with a warning that he shall not repeat similar incidents. Thereafter an application was submitted by the petitioner for regularizing the period of suspension and Ext.P8 order was passed by the Manager by which the said period was treated as eligible leave. Ext.P8 order was passed after getting concurrence from the AEO in this regard. The W.P.C No. 24909 of 2022 4 petitioner challenged the said proceedings, which ultimately resulted in Ext.P11 order passed by the Government in the revision petition submitted by the petitioner by which, Ext.P8 was confirmed. This writ petition is submitted in such circumstances challenging the said orders. 3. The counter affidavits were submitted by the 1[st] respondent and by the 4[th] respondent. Both the respondents have supported the findings in Exts. P8 and P11. 4. Heard, Sri. Rekha Vasudevan, the learned counsel appearing for the petitioner and Sri. Premchand R Nair, the learned Senior Government Pleader, appearing for the respondents 1 to 3 and Sri. R.K Muraleedharan, the learned counsel appearing for the 4[th] respondent. 5. The specific contention put forward by the learned counsel for the petitioner is that, the petitioner is entitled to full pay in respect of the period of suspension by virtue of Rule 57 of Part I of KSR. It was pointed out that the acquittal as evidenced by Ext.P4, was an honourable acquittal, which amounts to an acquittal of blame as contemplated under Rule 57. W.P.C No. 24909 of 2022 5 6. On the other hand, the learned Government Pleader as well as the learned counsel appearing for the 4[th] respondent contend that, since the witnesses have turned hostile to the prosecution, it cannot be treated as an order of acquittal of blame. The learned Government Pleader brought the attention of this court to the observations made in Ext.P11 Government Order by which a specific finding was entered into, on the basis of the statements given by the victim before the police. In the said order, the possibility of the victim being influenced was also taken note of. Therefore, it was pointed out that under no circumstances can the acquittal of the petitioner be treated as an honourable acquittal amounting to acquittal of blame. 7. The learned counsel for the petitioner placed reliance upon a decision rendered by a learned Single Bench of this court in **Anto T.D v. State of Kerala and Others** [2017 (3) KHC 994]. The learned counsel for the 4[th] respondent placed reliance upon a decision rendered by a Division Bench of this Court in **Kuttappan Nair v. Kerala State Electricity Board and Others** [2021(5) KLT SN 26(2021 KHC 350)] and another decision rendered by a Single Bench of this Court in W.P.C No. 24909 of 2022 6 **Muhammed Easa Sahib v. D.I.G of Police** [1990 (2) KLT 462]. 8. I have carefully gone through the records. As far as the observations made by the competent Criminal Court in Ext.P4 are concerned, it is to be noted that, absolutely no evidence was adduced by the prosecution to substantiate any of the charges framed against the petitioner. The entire evidence consists of oral testimonies of PWs 1 and 2 and the documentary evidence of Ext. P1 and P2, which were F.I. statements and the statement of the victim recorded under Section 164 of the Cr.P.C. PW1 was the victim, and she deposed that she did not know the petitioner, and no such incident as alleged by the prosecution had ever taken place. The deposition of PW2, was also to that effect. No official witnesses were examined and no scientific evidence or other materials were produced to substantiate the prosecution case. Thus it is evident that it was a case where no evidence was adduced by the prosecution and therefore it cannot be treated as a case where the acquittal of the petitioner was on benefit of doubt. As rightly pointed out by the learned counsel for the Petitioner, in **Anto T.D** 's case W.P.C No. 24909 of 2022 7 (supra), a case similar to that of the petitioner was considered where the victims turned hostile to the prosecution. In the said decision, after considering the same, this court observed that in such circumstances, the acquittal would amount to an acquittal of blame as contemplated under Rule 57 Part 1 of KSR and therefore, the petitioner therein was found to be entitled to full pay. 9. On the other hand, in the **Kuttappan Nair’s** case (supra) relied on by the learned counsel for the 4[th] respondent rendered by a Division Bench of this Coourt, the criminal case in which the petitioner therein involved was under the Prevention of Corruption Act. The acquittal was due to the reason that PW2, the person who offered the bribe, turned hostile to the prosecution. The observations made by this Court in the said court were to the effect that, it is for the authorities to take a decision after appreciating the contents of the judgment of acquittal to take a decision as to whether the acquittal was an honourable acquittal which amounts to acquittal of blame. 10. In this case, in Ext.P11 order the contents of the Ext P4 judgment considered. However, the contentions raised by the W.P.C No. 24909 of 2022 8 petitioner was rejected by placing reliance upon the F.I. Statement as well as the statement of the victim under 164 of the Cr.PC. As far as the said documents are concerned, the same cannot be treated as substantive evidence. Moreover, in Ext.P11, detailed discussions have been made by the 1[st] respondent and reached at the conclusion that the chances of the victim being influenced and compelled to give a statement against the prosecution cannot be ruled out. However, such an assumption is also not possible in the absence of any specific evidence in this regard. In this case, as observed above, in Ex. P4 there was absolutely no evidence to substantiate any of the allegations raised by the prosecution against the petitioner. The prosecution could examine only two witnesses and two documents. The victim and the other witness did not support the prosecution, and the acquittal of the petitioner was under section 232 of the Cr.P.C, i.e., without recording the statement of the accused under section 313 Cr.P.C, since the prosecution could not adduce any incriminating evidence. Thus, it was not a case where the acquittal was on the benefits of doubt, but it was a case of no evidence. Therefore, the factual circumstances as W.P.C No. 24909 of 2022 9 revealed from Ext.P4 is different from the criminal case that was the subject matter in **Kuttappan Nair** 's case and hence, the observation made therein cannot be made applicable to this case. The decision rendered by this Court in **Muhammed Easa Sahib's** case also, the factual circumstances were different and it is evident from the observation therein that the acquittal in that case was on the basis of benefit of doubt. Therefore, I am of the view that this is a case where the acquittal of the petitioner was due to the failure on the part of the prosecution to adduce any evidence, and therefore, it is an acquittal of blame coming under Rule 57 part I of KSR. Therefore, the impugned order has to be interfered with. 11. The learned counsel for the 4[th] respondent raised an apprehension that, since the order of suspension and the extension of suspension were on the basis of the orders passed by the 4th respondent, he is likely to be mulcted with the liability to pay the arrears of the salary. However, I do not find any scope for the same as well. It is evident from the records that, the initial suspension was ratified by the AEO and the extension of the period of suspension was also accepted by the W.P.C No. 24909 of 2022 10 authorities concerned. Even the order by which the period of suspension was regularized as eligible duty, was also with the prior approval of the authorities concerned. In such circumstances, I do not find any reason for such apprehension. In such circumstances, Ext.P8 and P11 are quashed. The respondents are directed to pass appropriate orders regularizing the period of suspension of the petitioner for the period from 08.07.2019 to 31.12.2020 as regular service with all benefits arising therefrom. Appropriate orders in this regard shall be passed by the 4[th] respondent within a period of one month, and the approval thereof shall be granted by the AEO within a further period of two months from the date of submission of the same. The monetary benefits of the same shall be released to the petitioner within a period of two months thereafter. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** rpk W.P.C No. 24909 of 2022 11 ## **APPENDIX OF WP(C) 24909/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE OF ORDER NO. 1/2019 DATED 15.07.2019 ISSUED BY 4TH RESPONDENT** **Exhibit P1 A TRUE COPY OF THE LETTER NO. D/1942/19 DATED 22.08.2019 ADDRESSED BY 3RD RESPONDENT TO 4TH RESPONDENT** |**Exhibit P2**|**TRUE COPY**|**OF THE MEMO OF CHARGES**| |---|---|---| ||**DATED 17.09.2019 ISSUED BY THE 4TH**|| ||**RESPONDENT**|| |**Exhibit P3**|**TRUE COPY **|**OF THE LETTER DATED**| ||**30.09.2019**|**SUBMITTED**<br>**BY**<br>**THE**| ||**PETITIONER**|**OT THE 4TH RESPONDENT**| |**Exhibit P4**|**TRUE COPY OF THE ORDER DATED**|| ||**15.12.2020 **|**IN SC 1069/2019 OF**| ||**ADDITIONAL **|**DISTRICT AND SESSIONS**| ||**COURT**|| |**Exhibit P5**|**TRUE COPY OF THE REPRESENTATION DATED**|| ||**22.12.2020**|**SUBMITTED**<br>**BY**<br>**THE**| ||**PETITIONER**|**TO THE 4TH RESPONDENT**| |**Exhibit P6**|**TRUE COPY**|**OF THE ORDER 1/2021 DATED**| ||**01.01.2021**|**ISSUED BY 4TH RESPONDENT**| |**Exhibit P7**|**TRUE COPY OF THE REPRESENTATION DATED**|| ||**17.03.2021**|**SUBMITTED**<br>**BY**<br>**THE**| ||**PETITIONER**|**TO THE 4TH RESPONDENT**| |**Exhibit P8**|**TRUE COPY**|**OF THE ORDER 2/2021 DATED**| ||**12.05.2021 **|**ISSUED BY THE 4TH**| ||**RESPONDENT**|| |**Exhibit P9**|**TRUE COPY **|**OF THE APPEAL DATED**| ||**01.06.2021**|**SUBMITTED**<br>**BY**<br>**THE**| ||**PETITIONER**|**TO THE 1ST RESPONDENT**| |**Exhibit P10**|**TRUE COPY **|**OF THE JUDGMENT DATED**| W.P.C No. 24909 of 2022 12 **15.09.2021 IN W.P.(C). NO. 14787 OF 2021 OF THIS HONOURABLE COURT Exhibit P11 TRUE COPY OF THE G.O.(RT) NO. 4116/2022/GEDN DATED 14.07.2022 ISSUED BY THE 1ST RESPONDENT Exhibit P12 TRUE COPY OF THE G.O.(RT) NO. 988/2022/G.EDN DATED 21.02.2022 ISSUED BY THE 1ST RESPONDENT**