P.G. Vijayan v. Kerala State Beverages (M&M) Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938** ## **WP(C).No. 3438 of 2009 (H)** ## **---------------------------** **PETITIONER(S):** **-----------------------** **P.G. VIJAYAN, REGIONAL MANAGER (RETIRED), KERALA STATE BEVERAGES (M&M) CORPORATION LTD., SASTHAMANGALAM, THIRUVANANTHAPURAM.** **BY ADV. SRI.DEEPU THANKAN.** **RESPONDENT(S):** **----------------------------** **1. KERALA STATE BEVERAGES (M&M) CORPORATION LTD., SASTHAMANGALAM, THIRUVANANTHAPURAM, REP. BY ITS MANAGING DIRECTOR.** **2. MANAGING DIRECTOR, KERALA STATE BEVERAGES (M&M) CORPORATION LTD.,, SASTHAMANGALAM, THIRUVANANTHAPURAM.** **BY SRI.NAVEEN.T., SC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/01/2017, THE COURT ON 08/02/2017 DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 3438 of 2009 (H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE ORDER DATED 10/03/1998.** - **EXT.P2 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN CRL.A. NO.789/2000 DATED 29/06/2005.** - **EXT.P3 COPY OF THE ORDER OF THE RESPONDENT DATED 05/08/2005.** - **EXT.P4 COPY OF THE MEMO OF CHARGES ISSUED BY THE RESPONDENT DATED 09/08/2005.** - **EXT.P5 COPY OF THE STATEMENT OF THE DEFENSE DATED 25/08/2005.** - **EXT.P6 COPY OF THE ORDER ISSUED BY THE RESPONDENT DATED 31/08/2005.** - **EXT.P7 COPY OF THE LETTER ISSUED BY THE ENQUIRY OFFICER DATED 06/09/2005.** - **EXT.P8 COPY OF THE LETTER DATED 19/09/2005.** - **EXT.P9 COPY OF THE LETTER OF THE ENQUIRY OFFICER DATED 01/02/2006.** - **EXT.P10 COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER ON 07/02/2006.** - **EXT.P11 COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER TO THE RESPONDENT.** - **EXT.P12 COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE RESPONDENT DATED 09/11/2007.** - **EXT.P13 COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 15/12/2007.** - **EXT.P14 COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT DATED 01/07/2008.** - **EXT.P15 COPY OF THE MEMORANDUM OF APPEAL PETITION FILED BY THE PETITIONER DATED 21/08/2008.** - **EXT.P16 COPY OF THE LETTER OF THE 1ST RESPONDENT DATED 11/11/2008.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R1A COPY OF THE DETAILS REGARDING PAYMENT OF SUBSTANCE PREPARED BY THE CONCERNED SECTION OF THE RESPONDENT CORPORATION.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.3438 of 2009** **= = = = = = = = = = = = = = = Dated this the 8[th] day of February, 2017** ## **JUDGMENT** 1.The challenge raised in this writ petition is against Exhibits P11, P14 and P16 orders. The contentions substantially is that the petitioner, an employee of the 1[st] respondent Corporation had been suspended from service on 10.03.1998 on account of his involvement in a criminal offence. He was convicted of the offence in the year 2000. By Exhibit P2 judgment dated 29.06.2005, the conviction was set aside by this Court. However, disciplinary proceedings were initiated against the petitioner after he was reinstated on the strength of Exhibit P2 judgment. Exhibit P11 enquiry report was submitted finding the petitioner of the guilty of the misconduct alleged against him. The petitioner attained the age of 55 in the year 2005 and continued in service till l2.11.2007 on the strength of the interim order in a writ petition filed seeking enhancement of retirement age. The said writ petition was also dismissed on 21.11.2007. No punishment was imposed on the petitioner during his service under the Corporation or even W.P.(C).No.3438/09 2 during the extended period of service, that is, till 21.11.2007. 2.Exhibit P12 show cause notice was issued proposing a punishment of discharge from service on 09.11.2007. By the time the petitioner submitted his reply to the proposal, he had already retired and it is an accepted proposition that no further orders of punishment could have been passed, since the service in the 1[st] respondent Corporation is not a pensionable service and therefore the provisions of Part III of the Kerala Service Rules would have no application. However, by Exhibit P14 order dated 01.07.2008, the Managing Director of the 1[st] respondent, relying on the enquiry report as well as the show cause notice and the reply furnished thereto, found that though there is misconduct, no penalty can be imposed since the petitioner was no longer in the employment. However the period of suspension from 10.03.1998 to 05.08.2007 is regularised treating the period as duty for all purposes except pay and allowances. The pay and allowances were limited to subsistence allowance already drawn/paid. Though Exhibit P15 appeal was preferred by the petitioner against the said order, it was rejected by Exhibit P16, which is W.P.(C).No.3438/09 3 also under challenge. - 3.Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. 4.It is submitted by the learned counsel for the petitioner that the petitioner had been placed under suspension from 10.03.1998 on account of registration of VC7/97/EKM by the Vigilance and Anti-Corruption Bureau. The petitioner was initially convicted under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, which was taken in appeal before this Court in Criminal Appeal No.789/2000. This Court found that it has been proved that the amount recovered from the petitioner's table was placed there without his knowledge and that this fact was spoken to by PWs.2 to 9 and 12. It was further held that appropriate action may be taken by the Government or the competent authority against the petitioner in respect of the above misconduct. However, the petitioner was acquitted of the offences charged against him. W.P.(C).No.3438/09 4 5. Exhibit P2 judgment was dated 29.6.2005. Pursuant to his acquittal in the criminal case, the petitioner was reinstated by Exhibit P3 order dated 05.08.2005. However, the period of suspension from 10.03.1998 to 5.8.2005 was not regularised, presumably for the reason that disciplinary action was contemplated against the petitioner. A memo of charges was served on him and an enquiry was conducted. Exhibit P11 is the enquiry report. However, no final orders were rendered in the disciplinary proceedings initiated against the petitioner after his reinstatement in service before he retired as attaining the age of superannuation. It is, therefore, contended that the petitioner was entitled to have the period of suspension treated as duty for all purposes, since there was no concluded disciplinary proceedings as against him. The learned counsel also relies on a decision reported in **Dev Prakash Tewari v. UP.Co-op Institutional Service Board** [2014) 7 SCC 260]. In support of the contention that the absence of specific provision for continuance of disciplinary proceedings after retirement, there is no legal authority in the employer to make any reduction from the retiral benefits. 5 ## W.P.(C).No.3438/09 - 6.The learned counsel appearing for the 1[st] respondent on the other hand submits that it is only in case where the acquittal was a completely honourable one that the petitioner would be entitled to treat the period of suspension as duty for all purposes. Relying on the decisions in **K.Ponnamma v. State of Kerala** [(1997)9 SCC 36] and **Messiah Das v. State of Kerala** [1978 KLT 160], it is contended that there is clear discretion vested in the prescribed authority to consider as to how the period of suspension is to be treated. - 7.I have considered the contentions. Admittedly, no final orders had been passed in the disciplinary proceedings initiated against the petitioner. Therefore what remains to be considered is only how the period of suspension from 10.3.1998 to 05.08.2005 was to be treated. The said period of suspension was undergone by the petitioner pending the criminal case against him. Though the respondents had been permitted to initiate disciplinary action against the petitioner by Exhibit P2 judgment, the said disciplinary action initiated W.P.(C).No.3438/09 6 could not be completed before the petitioner retired from service. In the above view of the matter, since suspension undergone by the petitioner was pending finalisation of the criminal proceedings initiated against him, I am of the opinion that the consideration of question of treating the period of suspension can also be only on the basis of the findings contained in Exhibit P2 judgment. Since the respondents have a contention that Exhibit P2 does not amount to a clean acquittal, the question of regularisation of period of suspension has to depend on the nature of the findings contained in Exhibit P2. 8.The disciplinary proceedings initiated against the petitioner on 09.08.2005 ought to have been completed by the respondents while he was in service. Since no orders were passed while the petitioner was in service and since the provisions of Rule 3 of Part III KSR would not be applicable since the service under the 1[st] respondent is not a pensionable service, I am of the opinion that the enquiry report and the findings contained therein cannot be relied upon by the respondents to consider W.P.(C).No.3438/09 7 whether the suspension was justified or not. The said issue would be wholly dependent on the findings contained in Exhibit P2 for the simple reason that what is being considered is the suspension of the petitioner pending the criminal proceedings which ended with Exhibit P2 judgment. Since there was no suspension pending the disciplinary proceedings, Exhibit P11 and the findings contained therein cannot be pressed into service to decide whether the earlier suspension was justified or not. I accede to position that there is discretion vested in the authority to consider whether the suspension was wholly unjustified or not to decide as to how the period of suspension is treated .However, in the instant case such discretion has to be limited to the findings contained in Exhibit P2 judgment. 9.In the result, Exhibits P12 and P14 orders are set aside. It is directed that orders shall by the 1[st] respondent on the question of regularisation of the period of suspension of the petitioner from 10.03.1998 to 05.08.005 taking note of Exhibit P2 and the findings contained therein alone and without reference to W.P.(C).No.3438/09 8 the unconcluded disciplinary proceedings initiated against the petitioner. Orders in this regard shall be passed, as directed above, by the 1[st] respondent within a period of three months from the date of receipt of a copy of this judgment. This writ petition is ordered accordingly. sd/- **Anu Sivaraman, Judge** sj