P. V. Boban v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 25TH DAY OF NOVEMBER 2019 / 4TH AGRAHAYANA, 1941** **OP(KAT).No.206 OF 2014(Z)** **AGAINST THE ORDER/JUDGMENT IN TA 6297/2012 DATED 17-01-2014 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **P.V.BOBAN, AGED 46 YEARS S/O. VARKEY, PUTHETHUKUDIYIL, POTHANIKKADU, ANGAMALY, ERNAKULAM DISTRICT, KERALA.** **BY ADVS. SRI.B.RAMACHANDRAN SMT.N.R.REESHA** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 SECRETARY MINISTRY OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **3 THE DISTRICT COLLECTOR ERNAKULAM-682121.** ## **OTHER PRESENT:** **SRI.ANTONY MUKKATH, SR.GP.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _**OP(KAT).206/14**_ 2 **“C.R”** ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------- OP(KAT).No.206 of 2014 ----------------------------------------------Dated this the 25[th] day of November, 2019 ## **JUDGMENT** ## _**Arun, J.**_ The petitioner while working as L.D.Clerk/Village Assistant in the Revenue Department, was convicted for the offence under Section 498A of the IPC under Exhibit P1 judgment dated 25.8.2007 and sentenced to undergo simple imprisonment for three months and a fine of Rs.3,000/-. The appeal against Exhibit P1 judgment was dismissed by the Sessions Court under Exhibit P2 judgment dated 9.6.2009. Thereupon, the petitioner was dismissed from service by Exhibit P11 proceedings dated 29.12.2009, as mandated under Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules. The petitioner preferred Crl.R.P.No.312 of 2010 challenging his conviction and sentence and by Exhibit P4 order dated 3.2.2010, execution of the sentence imposed on the petitioner was suspended subject to conditions. Later, the petitioner moved _**OP(KAT).206/14**_ 3 Crl.M.A.No.2718 of 2010 in the pending Criminal Revision Petition, seeking stay of Exhibit P1 judgment and his conviction thereunder. By Exhibit P14 interim order dated 18.3.2010, this Court stayed the conviction until further orders. Thereupon the petitioner sought reinstatement. By Exhibit P16, the request was rejected on the ground that revision is pending before the High Court. 2. The petitioner filed WP(C).No.7435 of 2010 before this Court seeking to quash Exhibit P11 and for a direction to reinstate him in service. The writ petition was later transferred to the Kerala Administrative Tribunal and numbered as T.A.No.6297 of 2012. The sole contention urged before the Tribunal was that the only reason for the petitioner's dismissal being his conviction by a criminal court, the petitioner is bound to be reinstated in service on the conviction being stayed. In support of his contention, the petitioner relied on the decision of this Court in _**Sudheer v. KSRTC**_ [2004 (3) KLT 217]. 3. The Tribunal, after careful analysis of Rule 18 of the KCS (CC&A) Rules, found that the petitioner having been dismissed on 29.12.2009, the stay of his conviction as per order dated _**OP(KAT).206/14**_ 4 18.3.2010 will not inure to his benefit. It was held that reinstatement is possible only as per Clause (b) of the Second Proviso to Rule 18, which provides for reinstatement on acquittal of the charges alone. The Tribunal observed that by the interim order, the conviction of the petitioner is only kept in abeyance temporarily, which does not have the effect of undoing his conviction. The contention based on the decision in _**Sudheer**_ was repelled by finding that even in _**Sudheer**_ it was specifically held that the order suspending the conviction must be one passed by the Court after applying its mind to the consequences. It was observed that the one line order by which conviction of the petitioner was stayed, did not reflect any application of mind by the Court. It was therefore held that the petitioner should necessarily await the final outcome of the criminal revision petition. 4. In this original petition the contentions urged before the Tribunal is reiterated. The only point arising for consideration is as to whether the petitioner is liable to be reinstated on the strength of Exhibit P14 interim order staying the conviction. The petitioner having been dismissed in exercise of the power under _**OP(KAT).206/14**_ 5 Rule 18 of the KCS (CC&A) Rules, it is only appropriate to analyse the Rule, as extracted hereunder; ## _"_ _**18. Special Procedure in certain cases.** --_ _Notwithstanding anything contained in R.15, 16 & 17,_ _(i) where a penalty is imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge; or_ _(ii) where the Disciplinary Authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or_ _(iii) where the Government is satisfied that in the interest of the security of the State it is not expedient to follow such procedure;_ _the Disciplinary Authority or the Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon as he deems fit:_ _Provided that before passing such orders under clauses (i) and (ii) the Commission shall be consulted in cases where such consultation is necessary under the Rules._ _Provided further that where a Government Servant is convicted on a criminal charge by a Criminal Court and sentenced to imprisonment and or. with fine.--_ _(a) he shall be dismissed or removed from service forthwith by invoking the provisions contained in item (a) of the second proviso to clause (2) of Art.311 of the Con-_ _**OP(KAT).206/14**_ 6 _stitution of India irrespective of the fact that an appeal is pending or that the execution of sentence is suspended in respect of the said conviction, and_ _(b) in case the said conviction is subsequently set aside in appeal or otherwise and the Government servant is acquitted of the charges, the order of dismissal or removal ceases to have effect and revised orders shall be issued forthwith to reinstate him in service entitling him all the benefits to which he would have been entitled had he been in service:_ _Provided also that in case where conviction is on a summary trial for petty offences and the sentence is for a fine upto Rupees Two Thousand only such conviction shall not be treated as a conviction for the purpose of this rule and for the entry into service or retention in service as the case may be"._ As discernible from the heading, Rule 18 prescribes a special procedure to be followed in certain cases. One such case is where a penalty is imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge. The conviction on a criminal charge entails in dismissal or removal of the Government servant from service by invoking the provisions contained in item (a) of the Second Proviso to clause (2) of Article 311 of the Constitution of India. The pendency of appeal against the conviction or the execution of sentence having been _**OP(KAT).206/14**_ 7 suspended does not fetter the right to dismiss or remove the Government servant. In _**Sudheer**_ , the question considered was whether a Government servant convicted by a criminal court could be dismissed from service under Rule 18, despite the conviction being stayed by the superior court. The learned Single Judge answered the question in the following manner: _“20. To sum up:_ _xx xx_ _(7) Merely because there is a general order of stay of operation of the judgment in a criminal case in which there is conviction of a Government servant on a criminal charge by a Criminal Court followed by sentence of imprisonment or fine or with both, there is no escape from the operation of the second proviso to R.18, unless the appellate or revisional Court has made a specific reference to the consequences which would otherwise follow if the conviction is stayed._ _(8). In case in an appeal or revision the Court on a specific request regarding the ramifications which would follow if the conviction is not suspended and if the Court applying its mind to the consequences has stayed the conviction apart from sentence, then the Government servant shall not be dismissed or removed from service undr the second proviso to R.18.”_ The petitioner having been dismissed prior to the conviction being stayed, _**Sudheer**_ will not be of any support. _**OP(KAT).206/14**_ 8 5 _._ A perusal of Exhibit P14 would show that the interim stay of conviction was granted by a single line order, which does not indicate the Court having considered all aspects including the ramifications of keeping such conviction in abeyance. The requirement of giving reasons is contained in Section 389(1) itself, which reads as follows: ## _**“389. Suspension of sentence pending the appeal; release of appellant on bail**_ _(1) Pending any appeal by a convicted person, the appellate court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond:_ _PROVIDED that the Appellate Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:_ _PROVIDED FURTHER that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file an application for the cancellation of the bail.....”_ _**OP(KAT).206/14**_ 9 6. In _**K.C.Sareen v. CBI**_ [(2001) 6 SCC 584], the Apex Court held that though the power to suspend an order of conviction, apart from the order of sentence, is not alien to Section 389(1) of the Cr.P.C, its exercise should be limited to very exceptional cases. It was held that the court has a duty to look at all aspects, including the ramifications of keeping such conviction in abeyance. Presumably, Exhibit P14 order staying the conviction was issued in exercise of the High Court's power of revision under Section 401, which include the powers conferred on a court of appeal by Sections 386, 389, 390 and 391 Cr.P.C. Therefore, the Tribunal was correct in holding that Exhibit P14 being a nonspeaking order, the dictum in _**Sudheer**_ has no application. 7. As per clause (b) of the Second Proviso to Rule 18, the order of dismissal or removal of a Government servant for reason of his conviction in a criminal case ceases to have effect on the conviction being subsequently set aside, in which event revised orders should be issued forthwith to reinstate the Government servant in service, entitling him for all the benefits to which he would have been entitled had he been in service. It is therefore clear that the entitlement for reinstatement is dependent on the _**OP(KAT).206/14**_ 10 conviction being set aside, which right would not arise on the conviction being stayed or kept in abeyance. Understandably so, since acquittal alone would efface the conduct of the Government servant which led to his conviction on a criminal charge. For all the aforementioned reasons, we find no ground to interfere with the impugned order of the Tribunal. The original petition is hence dismissed. The parties shall suffer their respective costs. Sd/- **K.VINOD CHANDRAN JUDGE** Sd/- **V.G.ARUN JUDGE** _vgs_ **x** _**OP(KAT).206/14**_ 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1- TRUE COPY OF JUDGMENT IN C.C.NO. 299/1996 DATED 25-8-2007. EXHIBIT P2 EXHIBIT P2- TRUE COPY OF JUDGMENT IN CR.A.NO. 627/2007 DATED 9-6-2009. EXHIBIT P3 EXHIBIT P3- TRUE COPY OF MEMORANDUM OF CRL. REVISION PETITION 312/2010 DATED 16-1-2010. EXHIBIT P4 EXHIBIT P4- TRUE COPY OF ORDER DATED 03-022010 IN CRL.M.A.NO. 884/2010 IN CRL.REV.PETITION NO. 312/2010. EXHIBIT P5 EXHIBIT P5- TRUE COPY OF MEMO DAETD 22-022010 IN C.C.NO. 2999/1996. EXHIBIT P6 EXHIBIT P6- TRUE COPY OF WOUND CERTIFICATE DATED 08-06-2009. EXHIBIT P7 EXHIBIT P7- TRUE COPYOF DISCHARGE SUMMARY DATED 12-06-2009 FROM LITTLE FLOWER HOSPITAL, ANGAMALAY. EXHIBIT P8 EXHIBIT P8- TRUE COPY OF MEDICAL CERTIFICATE DAED 12-06-2009. EXHIBIT P9 EXHIBIT P9- TRUE COPY OF FIR DATED 09-062009 OF ANGAMALY POLICE STATION. EXHIBIT P10 EXHIBIT P10- TRUE COPY OF CHARGE SHEET DATED 25-06-2009. EXHIBIT P11 EXHIBIT P11- TRUE COPY OF ORDER DATED 2912-2009 OF THE 3RD RESPONDENT. EXHIBIT P12 EXHIBIT P12- TRUE COPY OF REPRESENTATION DATED 06-02-2010 SUBMITTED BY THE PETITIONER BEFORE CHIEF SECRETARY. EXHIBIT P13 EXHIBIT P13- TRUE COPY OF REPRESENTATION DATED 24-02-2010 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P14 EXHIBIT P14- TRUE COPY OF ORDER DATED 18-32010.** _**OP(KAT).206/14**_ 12 **EXHIBIT P15 EXHIBIT P15- TRUE COPY OF REPRESENTATION DATED 3-6-2010 SUBMITTED BEFORE THE 2RD RESPONDENT. EXHIBIT P16 EXHIBIT P16- TRUE COPY OF LETTER DATED 159-2010 OF THE 3RD RESPONDENT. EXHIBIT P17 EXHIBIT P17- TRUE COPY OF CRL.M.A.NO. 2718/2010 IN CRL.RP.NO. 312/2010 DATED 103-2010. EXHIBIT P18 EXHIBIT P18- TRUE COPY OF ORDER DATED 17-12014 IN T.A.NO. 6297/2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL IS PRODUCAED HEREWITH AND MARKED AS**