R.G. Vilas Kumar v. Food Corporation of India & Others

**WA NO. 477 OF 2016 1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM TUESDAY, THE 12[TH] DAY OF OCTOBER 2021 / 20TH ASWINA, 1943 WA NO. 477 OF 2016** **AGAINST THE ORDER/JUDGMENT DATED 18.1.2016 IN WP(C)NO. 22133/2015 OF THIS HON'BLE COURT** ## **APPELLANT/PETITIONER:** R.G.VILAS KUMAR, AGED 52 YEARS, S/O.RAGHAVAN PILLAI, KALLINGAVILA VEEDU, MANAKAL P.O, THIRUVANANTHAPURAM, NOW WORKING AS ASSISTANT GRADE-III (GENERAL), FOOD CORPORATION OF INDIA, REGIONAL OFFICE, KESAVADASAPURAM BY ADV SRI.T.A.UNNIKRISHNAN ## **RESPONDENTS/RESPONDENTS:** 1 FOOD CORPORATION OF INDIA, REPRESENTED BY ITS MANAGING DIRECTOR, FOOD CORPORATION OF INDIA, HEAD QUARTERS, NEW DELHI, PIN -110 001. 2 THE EXECUTIVE DIRECTOR (SOUTH), FOOD CORPORATION OF INDIA, ZONAL OFFICE, CHENNAI, PIN-600 006. 3 THE GENERAL MANAGER, FOOD CORPORATION OF INDIA, REGIONAL OFFICE, THIRUVANANTHAPURAM, PIN -695 004. BY ADV SRI.JOSE KURIAKOSE, SC, FCI **WA NO. 477 OF 2016 2** THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WA NO. 477 OF 2016 3** ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ. =========================================** ## **W.A. No.477 of 2016** [A _rising out of the impugned judgment dated 18.01.2016 in W.P.(C).No.22133/2015_ ] **=========================================** Dated this the 12[th] day of October, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The appellant herein had filed the instant Writ Petition (Civil) in W.P.(C) No.22133/2015, before this Court with the following prayers [see ## page No.21 of the paper book of the Writ Appeal] : - “(i) Call for the records leading to Exhibit P4 and issue a writ of certiorari or such other writ order or direction quashing that part of Exhibit P4 which order for treating the intervening period from the date of dismissal till reinstatement as period not spend on duty; - (ii) Issue a writ of mandamus or such other appropriate writ order or direction directing the respondents to treat the intervening period from the date of dismissal till reinstatement as period spend on duty and release the salary for the said period forthwith; - (iii) Grant such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” 2. The learned Single Judge after hearing both sides has rendered the impugned judgment on 18.1.2016 dismissing the above W.P. (C) on the ground that since the writ petitioner had dishonoured the cheque issued by him for a valid purpose and had suffered imprisonment after his conviction and was sentenced to imprisonment on his consequential conviction for offence under Section 138 of the Negotiable **WA NO. 477 OF 2016 4** Instruments Act, the court finds no reason to interfere with the impugned order at Ext.P4. 3. Being aggrieved by the said judgment in the W.P.(C), the petitioner had filed the instant intra court appeal under Section 5(i) of the Kerala High Court Act. 4. Heard Shri.T.A.Unnikrishnan, learned counsel appearing for the appellant in W.A/writ petitioner in W.P.(C) and Shri. Jose Kuriakose, the learned Standing Counsel for the Food Corporation of India (FCI) appearing for the 2[nd] respondent in W.A/ 1[st] respondent in W.P.(C). 5. The appellant, who is a serving employee of the respondent Food Corporation of India was convicted for the offence under Section 138 of the NI Act and ordered to undergo imprisonment for a day and to pay the stipulated fine and in default thereof to suffer imprisonment for a period of three months, as per the judgment rendered by the Sessions Court, Thiruvananthapuram on 11.11.2008 in Crl.Appeal No.48 of 2008. Thereupon, the 2[nd] respondent FCI had issued Ext.P1 show cause notice dated 8.9.2009 ordering that the above said conduct of the appellant which reduced conviction in the above Section 138 NI Act complaint, makes his further detention in the service of the Food Corporation of India undesirable so as to warrant imposition of major penalty and that the appellant shall show cause as to why orders shall not be passed by the **WA NO. 477 OF 2016 5** competent authority of the respondent FCI to compulsorily retire him from service on 8.9.2009. Further, it was ordered that the period of conviction/ deemed suspension from 18.5.2009 to 17.8.2009 shall be treated as non duty for all purposes and no subsistence allowances is payable for the said period etc. . Thereafter, it appears that the appellant had not furnished any reply thereto and that the 3[rd] respondent General Manager had issued Ext.P1 penalty order dated 8.9.2009 ordering that the appellant herein will stand compulsorily retired from service of the respondent Food Corporation of India and further that, w.e.f 8.9.2009 the period of conviction/deemed suspension from 18.5.2009 to 17.8.2009 shall be treated as “non-duty” for all purposes and that no subsistence allowance for the said period is payable, etc. 6. It appears that aggrieved by Ext.P1, the appellant had filed a statutory appeal before the designated Appellate Authority, which was dismissed by the said appellate authority. This was challenged in review petition before the competent authority. This Court as per judgment dated 1.10.2012 in WP(C).No.29198 of 2010 had directed the competent authority to consider and pass orders on such review petition. Thereupon, the competent authority has passed Ext.P2 order dated 26.2.2013, in the said review petition ordering that the penalty order of compulsory retirement will stand modified as reversion to the post of **WA NO. 477 OF 2016 6** AG.II (General) in the below scale of pay and that the intervening period from date of dismissal till the date of reinstatement would be treated as the period spend not on duty. 8. Appellant thereupon challenged Ext.P2 order by filing W.P. (C) No.16011 of 2013 before this Court. By Ext.P3 judgment dated 3.3.2015 of this Court in W.P.(C) No.16011 of 2013, this Court categorically held that the imposition of major penalty of reversion to the post as Ext.P3 is quite unreasonable and arbitrary taking into account the fact that the offence for which the appellant was convicted and sentenced was only in terms of Section 138 of the NI Act and that the gravity of an offence as per Section 138 of the NI Act cannot be treated to at par with an offence of IPC etc. This Court declared and held in Ext.P3 that only an appropriate minor penalty could have been imposed on the appellant in the disciplinary proceedings and thus, quashed Ext.P2 order herein, and remitted the matter to the Review Authority for consideration and passed orders in the light of the observations and findings of this Court in Ext.P3 judgment. 9. Thereafter, the competent authority (1[st] respondent) has passed Ext.P4 order dated 12.5.2015, ordering that the penalty of reversion of the post in the minimum scale of pay will stand modified to that of reduction by one stage in the time scale of pay of AG.II(G) for **WA NO. 477 OF 2016 7** three years without cumulative effect and that the intervening period from the date of dismissal till the date of reinstatement, would be treated as the period spend not on duty and that Ext.P4 order will come effective from 26.2.2013, which is the date of Ext.P2, as ordered by this Court in Ext.P3 judgment. The appellant has filed the instant writ petition in this case challenging Ext.P4 order to the limited extent that, Ext.P4 as ordered that the intervening period from the date of dismissal till the date of reinstatement could be treated as the period not spend on duty etc. The appellant would contend that the said period should be treated as duty or at any rate, a more fair and just order should have been passed instead of the one ordered at Ext.P4 order as above. 10. We have heard both sides _in extenso_ . We had requested Shri.Jose Kuriakose, the learned Standing Counsel for respondent – Food Corporation of India to get specific instructions from the competent authority whether the above said period from the date of dismissal up to the date of reinstatement could be treated as duty, for the limited purpose of notional pay fixation and for qualifying service as pension etc. 11. Sri.Jose Kuriakose, learned Standing Counsel for the respondent -FCI would submit on the basis of instructions that, the competent authority has even earlier ordered to treat the above said period, the date of dismissal upto the date of reinstatement as, for the **WA NO. 477 OF 2016 8** purpose of notional pay fixation. Further that, the pension of the appellant is covered in terms of the Employees Pensions Scheme as conceived under the Employees' Provident Fund Act, 1952. Further that, the said Provident Fund Scheme is a Contributory Scheme wherein, both the employer and employees have to contribute and a specific part of the contribution of the employees will be diverted to the pension fund, to take care of the claims of the employees concerned for pensionary benefit under the Employees' Pension Scheme as per the EPF Act. Further that, in the instant case, since the said period has been treated as non duty for all purposes, at the earlier point of time, it shall be treated as non contributory period for the purpose of Employees Provident Fund and Employees' Pension Scheme and as per the above said Act and that, it is too late in the day at this stage to treat this period as a pensionable service as matters are also regulated by the provisions of the Employees' Provident Fund Act and that there may be complications in that regard, especially, as regards the stand of the Employees' Provident Fund Authorities etc. 12. We specifically requested the learned counsel for the appellant to ascertain as to whether the above said period in question has been treated for the purpose of mutual pay fixation, etc. It appears that the counsel for the appellant has to get specific factual instructions on that **WA NO. 477 OF 2016 9** aspect. However, counsel for the appellant would argue that in case, this Court is not inclined to order that the said period shall be treated as duty for all purposes including full pay & allowances etc., then this Court may at least order in terms of the suggestions made by this Court, as referred to herein above. 13. After hearing both sides, we are of the view that, this Court has declared in categorical terms in Ext.P3 judgment that, the major penalty imposed on the appellant was illegal and unreasonable and that for having suffered conviction and sentence for an offence in terms of Section 138 of the NI Act, at best the employer would have only imposed a minor penalty on the appellant in the facts and circumstances of this case. True that, this Court while modulating the rival pleas, as ordered in Ext.P3 judgment that the minor penalty that may be imposed afresh, will be made effective from 26.2.2013 , which is the date of issuance of Ext.P2 order. It has to be borne in mind that the respondents have also accepted the correctness of Ext.P3 judgment and the said inter partes judgment at Ext.P3 has become final and conclusive. Therefore, ordinarily, the punishment that should have been imposed on the appellant could have been only a minor penalty even as on the day wherein the respondents had considered the imposition of the penalty at the original stage. If a proper and legally correct approach has been taken by the respondents **WA NO. 477 OF 2016 10** then only a minor penalty would have been imposed on the appellant and the present controversy would not have arisen at all. Further, it has also to be already borne in mind that it is well settled by a series of rulings of this Court and various High Courts and the Apex Court that the gravity of offence as per Section 138 of NI Act cannot be equated with an offence under the IPC or the other criminal offence. See _**State of Kerala v. Mohanan** [2000(1) KLT 129] (DB)_ _**, Saseendran Nair v. General Manager** [1996(2) KLT 482] (DB)_ and _**Kaushalya Devi Massand v. Roopkishore Khore** [(2011) 4 SCC 593]_ . It is also pertinent to note that a three Judge Bench of Apex Court in a recent judgment delivered on 23.9.2021 in Criminal Appeal Nos. 849 of 2011 and 850 of 2011 has categorically held and reiterated the legal position in para 21 thereof, that the gravity of an the offence as per Section 138 of the NI Act, cannot be equated with an offence under IPC or other criminal offences etc. Therefore, we are of the view that these crucial and relevant aspects have not been duly taken into consideration in the impugned judgment. We are of the view that the matter would require serious reconsideration at the hands of the 1st respondent, who has passed Ext.P4. For effectuating such a remit, we set aside and quash Ext.P4 order dated 12.5.2015 issued by R1, only to the limited extent, it has ordered that the intervening period from the date of dismissal till the date of reinstatement would be **WA NO. 477 OF 2016 11** treated as period not spend on duty. The 3[rd] respondent will re-consider as to whether the said period in question could be treated as the duty for the limited purpose of qualifying pensionable service. We have already recorded the submission of the respondent that they have already passed orders treating the above said period for the purpose of notional pay fixation. The 1[st] respondent will afford reasonable opportunity of being heard to the appellant herein or through his authorised representatives/authorised counsel of his choice, and then may decide the matter afresh on the limited issue as to whether or not such period will be treated as duty for the limited purpose of qualifying service of pension. In that regard, if there are any difficulties in relation to contributions to be made in the EPF and EPS etc., then the 3[rd] respondent may consider afresh on the limited issue as to whether at least contributions could be made both to the EPF and EPS for the said period, so that the terminal benefits of the appellant more particularly, the PF and the pension are duly taken care of, and in that process, any orders of the EPF or EPS authorities are required, it is for the 3[rd][st] respondent to ascertain that and consider necessary action. The 3[rd] respondent will anxiously bestow his consideration on all these aspects, and orders should be passed in the light of the above said observations more particularly, in view of the fact that the findings in Ext.P3 judgment has become final and conclusive. ## **WA NO. 477 OF 2016 12** Orders in that regard will be duly passed by the 1[st ] respondent without any delay within a period of three months from the date of production of a certified copy of this judgment. 14. As noted herein above, we have recorded the submission of the respondents that they have already passed orders treating the above said period in question, the date of dismissal up to the date of reinstatement for the purpose of pay fixation. If any, actual benefits for the subsequent period consequent to such notional pay fixation for the above said prior period is to be worked out, it is for the competent authority among the respondents, particularly R-3, to examine those issues and to do the needful in that regard. In the light of these aspects, the impugned judgment dated 18.1.2016 rendered by the learned Single Judge in W.P.(C) No.22135 of 2015, will stand set aside. With these observations and directions, the above Writ Appeal, will stand finally disposed of. sd/- ## **ALEXANDER THOMAS, JUDGE** sd/- ## **VIJU ABRAHAM, JUDGE** pm