P. R. Anil Kumar v. The Chairman, Kerala State Electricity Board and The Chief Engineer (HRM), Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940** ## **WP(C).No.7636 of 2014** ## **PETITIONER:** **P.R.ANIL KUMAR ASSISTANT ENGINEER (ELECTRICAL SECTION) CHEMPU, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, VAIKOM, KOTTAYAM** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL (PRANAVAM)** ## **RESPONDENTS:** **1 THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM ,PIN 695 014. 2 THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM ,PIN 695 014.** **BY ADVS. SRI.M.K.THANKAPPAN SC KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.7636 of 2014** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner seeks to set aside Ext.P6 order to the extent it denies to the petitioner consequential benefits including arrears of salary for the period between 22.05.2013 and 05.10.2013, on his reinstatement in service as per Ext.P4. 2. The petitioner was working as Sub Engineer at Electrical Section, Vakathanam. He was implicated as an accused along with another in CC No.703/2007 charge-sheeted by the Sub Inspector of Police, Vakathanam. The allegation against the petitioner was that he was negligent in discharging his duties and he omitted to repair broken 3 phase electricity line at a private road leading to the residential house of one Sri.John V. John, whereby two persons died due to electrocution. The allegation of prosecution was that the death of Sri.Monai and Sri.John V. Abraham was caused due to the negligence **WP(C).No.7636 of 2014** **3** of the petitioner. On charge-sheeting the petitioner, the petitioner was put under suspension on 30.06.2007. The Judicial First Class Magistrate's Court, Changanassery, found the petitioner guilty and convicted and sentenced him to undergo imprisonment for six months and to pay a fine of ₹10,000/-. On the basis of the conviction and sentence, the petitioner was removed from service on 22.05.2013. 3. In an appeal filed by the petitioner, the Additional Sessions Court, Kottayam, acquitted the petitioner. Thereupon, the petitioner was reinstated in service on 05.10.2013. 4. The 2[nd] respondent passed Ext.P6 order dated 05.10.2013 readmitting the petitioner in service. However, in the said order, it was stated that the period between removal from service of the petitioner and his reinstatement shall be regularised as eligible leave, if he desires so, or as Leave Without Allowance which will not count for any service benefits. The said Ext.P6 order is under challenge to the extent it denies the petitioner consequential benefits **WP(C).No.7636 of 2014** **4** including the arrears of salary on reinstatement. 5. The learned counsel for the petitioner argued that the conviction and sentence imposed on the petitioner was reversed by the Additional Sessions Court and hence the grounds on which the petitioner was removed from service were completely erased. Therefore, the petitioner is entitled to be paid all consequential benefits during the period he was unnecessarily kept away from service. Relying on the judgment of the Apex Court in _**Sulekh Chand and Salek Chand v. Commissioner of Police and others** [1994 (5) SLR 742]_ , the learned counsel argued that once an employee is acquitted of the charges found against him by the appellate court honourably, he is entitled to be paid arrears of salary and all consequential benefits during the period he was kept away from service. The learned counsel argued that the 2[nd] respondent has not considered the judgment of the Additional Sessions Court by which he was acquitted before taking a decision as regards regularisation of his period of absence. The decision was taken without **WP(C).No.7636 of 2014** **5** giving an opportunity of hearing to the petitioner, contends the learned counsel for the petitioner. 6. The Standing Counsel for the respondents filed a counter affidavit in the matter and contested the writ petition. According to the Standing Counsel, the Additional Sessions Court observed that the prosecution has failed to prove the case against the accused beyond reasonable doubt and the impugned conviction and sentence entered by the trial court were not sustainable in law and hence liable to be set aside. According to the Standing Counsel, they have taken a lenient view in the matter and decided to treat the period between removal and readmission as eligible leave. The principle of 'No Work, No Pay' will apply in the case, contends the Standing Counsel. 7. In this case, removal of the petitioner was based on conviction by a competent court of law. The KSEB has not unlawfully terminated him from discharging his duty. It was the petitioner's conduct that led to his conviction. The petitioner, therefore, is entitled to full back wages especially **WP(C).No.7636 of 2014** **6** since he was not fully honourably acquitted of the charges, contended the Standing Counsel. 8. I have heard the learned counsel for the petitioner and Standing Counsel for the KSEB. 9. Rule 57 of Part I KSR reads as follows:- _“An officer who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours, or is undergoing imprisonment, shall be deemed to be under suspension with effect from the date of commencement of the detention or imprisonment, as the case may be, 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, until he is reinstated in service. An adjustment of his pay and allowances for such periods should thereafter be made according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of_ **WP(C).No.7636 of 2014** **7** _blame or (if the proceedings taken against him were for his arrest for debt) of its being provided that the officer's liability arose from circumstances beyond his control.”_ A perusal of the rule though it relates to regularisation of period of suspension, would make it clear that in such circumstances, adjustment of pay and allowances of an employee should be made according to the circumstances of the case. The full back wages should be given in the event of the officer being acquitted of blame or when the liability of the employee arose from circumstances beyond his control. The said rule mandates consideration of the case by the authority regularising the period of suspension. 10. A reading of Ext.P6 would show that the 2[nd] respondent, who has passed the order, has acted pursuant to the directions given by the Chairman, KSEB. Ext.P6 does not disclose whether the 2[nd] respondent has considered the judgment of the Additional Sessions Court in its entirety before deciding regularisation of the period in **WP(C).No.7636 of 2014** **8** question. Ext.P6 simply states that the period between the removal of the petitioner and readmission shall be regularised as eligible leave or as Leave Without Allowance. Ext.P6 order lacks non-application of mind to that extent. 11. In the circumstances of the case, I set aside Ext.P6 to the extent it treats the period from removal of the petitioner till readmission into service, as eligible leave or as Leave Without Allowance. The 2[nd] respondent is directed to consider Ext.P3 judgment in its entirety and to decide afresh how the said period is to be regularised. A decision in this regard will be taken within a period of three months, after giving an opportunity of hearing to the petitioner. Writ petition is disposed of as above. Sd/- **N. NAGARESH, JUDGE** aks/28.02.2019 **WP(C).No.7636 of 2014** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 COPY OF THE JUDGMENT DATED 26/6/2012 IN CC NO. 703/2007 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHANGANASSERY** **EXHIBIT P2 COPY OF ORDER NO. EBVS.4/22/2009 DATED 22/5/2013 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 COPY OF THE JUDGMENT DATED 31/7/2013 IN CRL.APPEAL NO. 203/2012 OF THE ADDITIONAL SESSIONS COURT, KOTTAYAM** **EXHIBIT P4 COPY OF ORDER NO. VIG/B2/6215/2007/1811 DATED 4/9/2013 ISSUED BY THE IST RESPONDENT EXHIBIT P5 COPY OF ORDER NO. GB2/DIS.ACTION/ANIL KUMAR/VKM/10-11/150 DATED 5/8/2010 ISSUED BY THE EXECUTIVE ENGINEER,KSEB EXHIBIT P6 COPY OF ORDER NO.EBVS.4/22/2009/801 DATED 5/10/ 2013 ISSUED BY THE 2ND RESPONDENT**