O.T. Karunakaran v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **WP(C).No.24789 OF 2010(W)** ## **PETITIONER:** **O.T.KARUNAKARAN, SUB-ENGINEER (RETD), KERALA STATE ELECTRICITY BOARD, RESIDING AT LAKSHMIKRIPA, P.O.KEEZHARA, CHERUKUNNU, KANNUR DISTRICT.** ## **BY ADV. SRI.P.M.PAREETH** ## **RESPONDENTS:** **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM – 695001. 2 CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM – 695001. 3 EXECUTIVE ENGINEER, ELECTRICAL DIVISION KANHANGAD, KASARAGOD DISTRICT. 4 CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM – 695001. 5 SPECIAL OFFICER, MANAGING COMMITTEE, KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. BY ADVS. SRI.M.K.THANKAPPAN, SC, KSEB SRI.ASOK M.CHERIYAN, SC, KSEB SRI.K.S.ANIL, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.24789 OF 2010(W)** **2** ## **JUDGMENT** **The petitioner was placed under suspension as per Ext.P1 order dated 08.03.2000, while he was working as a Sub Engineer, consequent to his arrest in a trap case by the Vigilance and Anti-Corruption Bureau alleging that he accepted bribe amounting to Rs.500/-. He was reinstated as per order dated 22.05.2002. Petitioner claims that an order was issued, in the meanwhile, on 17.08.2000, promoting him to the post of Assistant Engineer. However actual promotion was not effected and he continued as Sub Engineer. The trial Court convicted him as per judgment dated 22.08.2005 in C.C.No.4/2001. Consequent to this, petitioner was dismissed from service as per Ext.P3 order dated 30.09.2005, in view of the conviction of the petitioner under Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and also Section 5 of the same Act. As per Ext.P4 judgment dated 09.07.2007, the appeal filed by him was allowed and he was acquitted by this Court. By that time, the petitioner had already** **WP(C).No.24789 OF 2010(W)** **3** **attained the age of superannuation on 30.06.2006. On the basis of Ext.P4 judgment, petitioner submitted representations requesting to grant him all service benefits. As per Ext.P5 order dated 26.04.2008, the 2[nd] respondent revoked the order of termination issued on 30.09.2005 and regularised the period of his absence on account of suspension as well as termination from service i.e., for the period from 03.03.2000 to 22.05.2002 and from 30.09.2005 to 30.06.2006 as Leave Without Allowance. The petitioner submitted appeal and revision. As per Ext.P7 order the Chairman ordered that the period of suspension would be treated as Eligible Leave instead of Leave Without Allowance; salary from 22.08.2005 to 30.09.2005 would be disbursed if he had actually worked during the said period; the period from 01.10.2005 to 30.06.2006 which was already treated as Leave Without Allowance would also be treated as eligible leave; he would not be considered for any promotion during the period of** **WP(C).No.24789 OF 2010(W)** **4** **suspension or removal and that his eligible pension and other retirement benefits would be granted. According to the petitioner, once the conviction was set aside by this Court as there was no evidence to prove the commission of offences, the respondents were not justified in denying him the pay and allowances and that the refusal to regularise the period of his absence as duty was unjust.** **2. The respondents have filed a counter affidavit supporting the stand in the orders impugned. It is stated that petitioner was placed under suspension based on the report from the Deputy Superintendent of Police, Vigilance and AntiCorruption Bureau, Kasargode about the involvement of petitioner in a trap case. Review in such cases are made by Government. On the basis of direction from VACB he was re-instated in a non-sensitive post. His removal was based on his conviction by the trial court. On acquittal, the admissible benefits were already paid. It is stated that petitioner is** **WP(C).No.24789 OF 2010(W)** **5** **not entitled to pay and allowances during the period under termination on the principle of no work no pay. It is stated that the conviction was set aside on the ground that there was no independent evidence to prove that he demanded or accepted bribe as alleged by the prosecution.** **3. The Chairman – the 4[th] respondent has rejected the request of the petitioner for full pay and allowances on the ground that the judgment of the High Court cannot be described as an “honourable acquittal”. It is also stated that the High Court has not stated anything about the period of suspension and other actions of the Board like denial of promotion, termination from service etc.** **4. However, the first issue to be considered is whether the petitioner is entitled to be granted pay and allowances for the period he had been kept out of service consequent to the suspension and subsequent dismissal. The learned counsel for the petitioner relying on the judgments of this Court in** **WP(C).No.24789 OF 2010(W)** **6** _**Pathrose v. Kerala Water Authority**_ **[2008 (3) KLT 635];** _**Mohandas v. State of Kerala**_ **[2008 (3) KLT 62] and** _**Joseph C.K. v. Kerala State Electricity Board and Others**_ **[2015 (4) KHC 701] argued that the petitioner should have been granted the pay and allowances as well as the service benefits as if he continued in service without suspension or termination. The learned counsel also relied on the judgment of the Full Bench of this Court in** _**State of Kerala and Another v. N.G.Joseph**_ **[2014 (4) KHC 814].** **5. In the judgment in** _**Pathrose's**_ **case (Supra), this Court interpreted the meaning of the word 'acquitted of blame' and it was held that in order to attract Rule 57 of Part I, KSR the acquittal should have been of such a nature as to exculpate the Officer of all blame in relation to the charge. In the judgment in** _**Mohandas's**_ **case, issue was one relating to the reinstatement under Rule 18(b) of Civil Services (Classification, Control and Appeal)** **WP(C).No.24789 OF 2010(W)** **7** **Rules, consequent to the reversal of conviction. Referring to Rules 56A and 57 of Part I KSR, it was found that the competent authority has to pass orders regarding the pay and allowances for the period of absence.** **6. Rule 57 of Part-I, KSR relates to the period during which an employee is kept under suspension or is under deemed suspension consequent to detention in custody. It is provided therein that an adjustment of his pay and allowances should be made after his reinstatement in service according to the circumstances of the case and that full amount can be given only in the event of the Officer being acquitted of blame. In this case, the suspension was not on account of detention in custody. Therefore, Rule 57 would not apply. Rule 56 Part I, KSR relates to regularisation of the period of suspension consequent to reinstatement. Rule 56B provides that if the authority competent to order reinstatement is of the opinion that the Officer has been fully** **WP(C).No.24789 OF 2010(W)** **8** **exonerated, he shall be paid full pay and allowances as if he was not dismissed or compulsory retired.** **7. In the case of the petitioner there were no departmental proceedings against him. The dismissal was only on account of his conviction. A reading of the judgment would show that there was no independent evidence to convict the petitioner and on that ground, he was acquitted. It is seen from Ext.P7 order that the 4[th] respondent has considered the request for regularisation of the period of absence, under a wrong impression that there would be direction from this court while disposing of the Criminal Appeal, regarding regularisation of the period of suspension, promotion, etc. It is pertinent to note that the judgment of this Court was in the criminal appeal in which the conviction in criminal case alone was the issue. It is therefore clear that while passing Ext.P7 order, the respondents have not considered the fact that there would not be any findings in the judgment in** **WP(C).No.24789 OF 2010(W)** **9** **Criminal Appeal, with respect to the service conditions of the petitioner including suspension, dismissal or any entitlement of his promotion. Therefore, it has to be concluded that Ext.P6 appeal was not considered with due application of mind. It is, therefore, necessary for the respondents to pass fresh orders on the question of promotion of the petitioner and for the pay and allowance for the period during which he was kept out. It is seen that but for the suspension consequent to the criminal case, he would have been granted promotion, as an order of promotion was already issued. Even assuming that the entire pay and allowances are not admissible to him, for the period of ouster, the respondents shall consider the claim of the petitioner for the benefits taking note of the order of promotion issued on 17.08.2000, atleast notionally and consider whether he can be granted the benefit of fixation of pay based on that promotion and consequential fixation of pay as well** **WP(C).No.24789 OF 2010(W)** **10** ## **as terminal benefits.** **The orders Exts.P7 and P8 are set aside to the extent indicated above. There shall be a direction to the Chairman/the competent authority to pass fresh orders on the claim of the petitioner for the benefit of promotion, for pay and allowances for the period during which he was kept under suspension and thereafter when he was kept out of service consequent to termination, within a period of two months from the date of receipt of a copy of the judgment.** **Accordingly, the writ petition is disposed of.** **Sd/P.V.ASHA JUDGE** ww **WP(C).No.24789 OF 2010(W)** **11** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE ORDER OF SUSPENSION DATED 08.03.2000.** **EXHIBIT P2 TRUE PHOTOCOPY THE REPORT DATED 18.6.2002 INFORMING THE JOINING DUTY OF THE PETITIONER.** **EXHIBIT P2A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20.7.2002.** **EXHIBIT P2B TRUE PHOTOCOPY OF THE REPRESENTATION DATED 9.12.2002. EXHIBIT P2C TRUE PHOTOCOPY OF THE REPRESENTATION DATED 17.9.2004.** **EXHIBIT P2D TRUE PHOTOCOPY OF THE REPRESENTATION DATED 26.11.2004. EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER DATED 30.9.2005 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 TRUE PHOTOCOPY OF THE JUDGMENT DATED 9.7.2007 IN CRL.APPEAL NO.1495/05. EXHIBIT P5 TRUE PHOTOCOPY OF ORDER DATED 26.4.2008 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P6 TRUE PHOTOCOPY OF THE APPEAL DATED 7.10.2009. EXHIBIT P7 A TRUE PHOTOCOPY OF THE ORDER DATED 13.4.2010 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P8 A TRUE PHOTOCOPY OF THE COMMUNICATION DATED 24.6.2010 ISSUED BY THE CHIEF VIGILANCE OFFICER, KERALA STATE ELECTRICITY BOARD.**