N. Vasumathy Amma v. K.S.E.B. Board and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 12TH DAY OF JANUARY 2016/22ND POUSHA, 1937** ## **WP(C).No. 33281 of 2005 (K)** **----------------------------** ## **PETITIONER:** - **-------------------** **N.VASUMATHY AMMA, BIJU NIVAS, NANNUVAKADU, PATHANAMTHITTA DISTRICT RTD. SENIOR SUPERINTENDENT (NC), K.S.E.B. ELECTRICAL CIRLCE OFFICE, PATHANAMTHITTA.** **BY ADV. SRI.V.PHILIP MATHEW** **RESPONDENTS:** - **------------------------** **1. K.S.E.B. REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2. THE CHAIRMAN,** - **K.S.E.BOARD, THIRUVANANTHAPURAM.** **3. THE CHIEF ENGINEER (H.R.M), K.S.E.B. THIRUVANANTHAPURAM.** **4. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, PATHANAMTHITTA.** **5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF POWER, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **R1 TO R4 BY ADV. SRI.S. SUJIN R5 BY GOVERNMENT PLEADER SRI. S. JAMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 33281 of 2005 (K)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1: COPY OF THE ORDER DATED 27.10.1997 ISSUED BY 4TH RESPONDENT** - **P2: COPY OF THE MEMO OF CHARGES DATED 08.12.1997 ISSUED BY 4TH RESPONDENT** - **P3: COPY OF THE REPLY TO THE MEMO OF CHARGES DATED 11.12.1997 SENT BY PETITIONER** - **P4: COPY OF THE PROCEEDINGS OF 4TH RESPONDENT DATED 13.01.1998** - **P5: COPY OF THE ORDER ISSUED BY 4TH RESPONDENT DATED 24.07.1998** - **P6: COPY OF THE JUDGMENT DATED 18.11.2003 OF LEARNED ADDITIONAL DISTRICT AND SESSIONS JUDGE, PATHANAMTHITTA** - **P7: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER TO 3RD RESPONDENT DATED 20.01.2004** - **P8: COPY OF THE SHOW CAUSE NOTICE DATED 14.06.2004 ISSUED BY 3RD RESPONDENT** - **P9: COPY OF THE REPLY LETTER DATED 01.07.2004 ADDRESSED TO 2ND RESPONDENT** - **P10: COPY OF THE ORDER DATED 20.10.2004 ISSUED BY 3RD RESPONDENT** - **P11: COPY OF THE REPRESENTATION DATED 17.11.2004 ADDRESSED TO 2ND RESPONDENT** - **P12: COPY OF THE REQUEST DATED 22.11.2004 ADDRESSED TO 3RD RESPONDENT** - **P13: COPY OF THE REPRESENTATION SUBMITTED BY PETITIONER TO HON'BLE MINISTER DATED 18.10.2004** - **P14: COPY OF THE JUDGMENT IN W.P.(C) 36329/04** - **P15: COPY OF THE LETTER DATED 25.04.2005** - **P16: COPY OF THE REPRESENTATION DATED 05.05.2005 FROM THE petitioner TO THE CHAIRMAN, K.S.E.B.** - **P17: COPY OF THE ORDER DATED 05.08.2005 ISSUED BY FIRST RESPONDENT** - **P18: COPY OF LETTER NO.PA 16/VIII/PP) 27308/(R) DATED 24.11.06 FROM THE 3RD RESPONDENT TO THE EXECUTIVE ENGINEER, KSEB ELECTRICAL DIVISON, PATHANAMTHITTA** **....2** ## **WP(C).No. 33281 of 2005 (K)** **-2-** ## **RESPONDENT'S EXHIBITS** **R1(A) : TRUE COPY OF ORDER DATED 19.05.2006** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 33281 of 2005 (K) -----------------------------------------Dated this the 12[th] day of January, 2016 ## **J U D G M E N T** The petitioner, by the above writ petition, challenges Exts.P8, P10 and P17 orders which are respectively the show cause notice issued on the basis of an enquiry report, the order of the disciplinary authority and the order of the appellate authority. As of now, only Ext.P17 need be considered since the punishment imposed at Ext.P10, itself was set aside by the appellate authority by Ext.P17 order, on the ground that no such punishment could have been imposed after the retirement of the petitioner. Ext.P17, however, directed that the period spend on suspension was not entitled to be treated as duty for the purpose of computation of pensionary benefits. ## **W.P.(C) No. 33281/2005** **-2-** 2. Subsequently, on the basis of Ext.P17, the subsistence allowance paid to the petitioner was sought to be recovered from the Death-cum-Retirement Gratuity (for brevity 'DCRG') and the petitioner was directed to give a consent for the same, which was refused. The petitioner contends that the petitioner is entitled to all service benefits from the date of suspension (Ext.P1) being 27.10.1997 to 13.1.1998, when she was reinstated, and for the further period of her second suspension from 24.7.1998 to her date of superannuation on 31.5.2001. 3. The relevant facts are that the petitioner was working as a Senior Superintendent in the Electrical Circle Office, Pathanamthitta, of the respondent Board. On the allegation that she was detained by the Police in connection with a crime registered under Sections 302, 118 and 34 of the Indian Penal Code, the petitioner was ## **W.P.(C) No. 33281/2005** **-3-** suspended as per Ext.P1 for reason of the detention having exceeded 48 hours. Subsequently, Ext.P2 dated 8.12.1997 was issued alleging that she had been arrested and kept under judicial custody from 13.10.1997 to 21.10.1997, on which later date she was released on bail by the Sessions' Court, Pathanamthitta. A reading of Ext.P2, which was styled as a memo of charges, would indicate that there is absolutely no charge levelled against the petitioner other than the allegation of detention by the Police, which is noticed in the statement of allegations. 4. The learned Standing Counsel appearing for the respondent Board would refer to Rule 57 of Part I of Kerala Service Rules (for brevity 'KSR') to contend that any officer who is detained in custody, whether on criminal charge or otherwise, exceeding 48 hours shall be deemed to be under suspension with effect from the ## **W.P.(C) No. 33281/2005** **-4-** date of commencement of the detention and shall not be allowed to draw any pay and allowances, during such period of suspension, other than any subsistence allowance and other allowances that may be granted in accordance with Rule 55 of KSR, until he is reinstated in service. 5. Though the learned Standing Counsel would refer to the KSR, it is to be noticed that Ext.P2 does not refer to the KSR but specifically indicates the action to be under K.S.E. Board Employees (Classification, Control and Appeal) Regulation, 1969 and Standing Orders applicable to the workmen engaged in clerical and other allied works. In any event, KSR having been adopted with respect to the service of the employees of the Board, Rule 57 of KSR would be applicable and the petitioner could be deemed to be under suspension from the date of her detention, but, however, the said ## **W.P.(C) No. 33281/2005** **-5-** suspension can continue only till she is reinstated in service. Admittedly, she was released on bail on 21.10.1997 and after her suspension by Ext.P1; she has been reinstated in service on 13.1.1998. Rule 57 of KSR does not stop with the mandate of suspension, but specifically deals with the reckoning of such period spent on suspension and adjustment of pay and allowances, which has to be made with reference to the circumstances of each case and the full amount of pay and allowances is to be granted only in the event of the officer being acquitted. 6. The learned Standing Counsel for the respondent Board places reliance on **Kerala State Handloom Development Corporation Ltd. v. Nanu - 2002 KHC 952** to contend that an acquittal on the ground of benefit of doubt would not be an 'honourable acquittal' and in such cases there is no question of ## **W.P.(C) No. 33281/2005** **-6-** reckoning of the suspension period for the purpose of service. Reliance is also placed on **Appukuttan Pillaiv. State of Kerala - 2001 KHC 583** to contend that the reckoning of the period and the payment of pay and allowances under Rule 57 of KSR have to depend on the facts and circumstances of each case and the authorities are vested with considerable discretion in deciding the issue. 7. The learned Counsel for the petitioner, however, contends that a reading of Ext.P6 itself would indicate that the petitioner had been 'honourably acquitted' for reason of there being absolutely no evidence against the petitioner, who was arraigned as A5 in the criminal case. It is also contended that the subsequent suspension was for proceeding with an enquiry, which was completed as early as in 1998, and the petitioner was kept under suspension throughout ## **W.P.(C) No. 33281/2005** **-7-** the period and even thereafter till her superannuation without any justifiable cause. The petitioner was acquitted of the charges by Ext.P6 in the year 2003 and the show cause notice at Ext.P8 was issued later in June, 2004, after her retirement. The petitioner is said to have not been served with an enquiry report and the petitioner had also not been heard on the findings in the enquiry. The petitioner, hence, contends that the petitioner is entitled to the entire service benefits from the date of Ext.P1 till her reinstatement and then for the further period in which she remained under suspension, till she retired. 8. As was noticed, Ext.P2 did not contain any specific charge levelled against the petitioner. The allegation of detention by police is admitted, but that alone cannot lead to an allegation of misconduct, since the circumstances under which the detention was made ## **W.P.(C) No. 33281/2005** **-8-** and the consequential proceedings arising therefrom would be a significant aspect. Be that as it may, the enquiry proceedings, as such, need not be considered as of now, since, the appellate authority has thought it fit to set aside the punishment imposed, for reason of it being after retirement. 9. The memo of charges, issued at Ext.P2, was replied to, in the nature of a statement of defence, by Ext.P3, which culminated in an enquiry being constituted as per Proceedings No. GB1-GL(43)/97/2945 dated 13.3.1998. An enquiry report is also said to have been submitted by the Enquiry Officer to the disciplinary authority on 21.4.1998, as is indicated at Ext.P17. It is not clear as to why the petitioner was continued under suspension after the enquiry report was filed in the year 1998 and there is absolutely no reason why the disciplinary authority did not take any ## **W.P.(C) No. 33281/2005** **-9-** action against the petitioner. In any event, the situation continued till her retirement, and as rightly held by the appellate authority, no punishment could have been imposed after her superannuation. 10. The challenge raised is with respect to the DCRG having been sought to be deducted with the amounts paid as subsistence allowance, on the ground that the detention of the petitioner dis-entitled her from the subsistence allowance paid, during the period of suspension. That would go against the specific prescription in Rule 57 of KSR. Rule 57 also contemplates a situation where, after detention, the officer being acquitted of the blame, in which circumstance, the adjustment of pay of allowances has to be considered on the basis of the facts coming to fore in each case. ## **W.P.(C) No. 33281/2005** **-10-** 11. Herein,the petitioner was arrested alleging connivance in the death of a 4½ year old child, her husband's niece, which was alleged to have been caused due to injuries inflicted on the child in the course of a procedure of exorcism, which was conducted by the father of the child. Ext.P6 clearly found that there was not even an iota of evidence to find that the petitioner, who was accused no.5, was involved in the incident or was responsible in any manner for the death of the child. The allegation that the petitioner had made false representation to any person also stood specifically negatived. It was specifically found that there was no circumstance to connect the petitioner with the offences alleged. It is not as if the petitioner was acquitted merely on a benefit of doubt being granted to her, but, was acquitted for reason of there being no circumstance to ## **W.P.(C) No. 33281/2005** **-11-** find her guilty of the offence. If that is not an 'honourable acquittal', this Court fails to comprehend what would be an 'honourable acquittal'. In that context the dictum in **Nanu** (supra) could only work in favour of the petitioner. 12. The next aspect would be as to how the period of suspension is to be treated for the purpose of service and the consequential retirement benefits. The appellate authority has concurred with the order of the disciplinary authority, that the period in which the petitioner was kept out of service was not to be reckoned for payment of pay and allowances. Definitely the same is a matter of exercise of discretion, as declared in **Appukuttan Pillai** (supra), but, however, subject to challenge if such discretion has not been exercised, following the well established principles governing such exercise. The discretion exercised by ## **W.P.(C) No. 33281/2005** **-12-** the disciplinary authority as affirmed by the appellate authority, in the present case, on the facts revealed can only be found to be an arbitrary exercise and highly improper. 13. The petitioner, who was detained in custody for about nine days, was suspended immediately after release on bail, and though reinstated was again suspended on the basis of an allegation with respect to the detention, but, however, without even a proper charge being framed against her. The enquiry proceedings were proceeded with and the same concluded in the year 1998 itself. The disciplinary authority thought it fit not to take any further proceedings and continued the petitioner under suspension till her retirement on 31.5.2001. The facts and circumstances of the case would definitely commend reckoning of such period of suspension as ## **W.P.(C) No. 33281/2005** **-13-** service rendered by the petitioner, since the petitioner was kept out of service illegally and without any justifiable cause. 14. The petitioner would be entitled to the entire pay and allowances for the period she was kept out of service, on the ground of her suspension, till her retirement. The subsistence allowance paid to the petitioner shall be deducted from the computation of pay and allowances and the balance amounts paid to her. The period of suspension shall be treated as service and reckoning such period the retirement benefits of the petitioner shall be re-computed and balance DCRG, if any, shall be paid. The period from 13.10.1997 till 21.10.1997, being the period of detention, shall be treated as eligible leave and also be reckoned as service. Exts. P8 and P17 orders would stand modified to the above extent. ## **W.P.(C) No. 33281/2005** **-14-** 15. Ext.R1(a) and Ext.P18 shall be of no consequence going by the directions issued by this Court. The entire amount shall be computed and paid within a period of three months from the date of receipt of the certified copy of this judgment, failing which the petitioner shall be entitled to interest at the rate of 6% from the date of her superannuation and the same shall be paid by the Board and recovered from the officer who commits such default. The writ petition is allowed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 13/1/16