S. Unnikrishnan Nair v. Kerala State Electricity Board Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943** ## **WP(C) NO. 25387 OF 2021** ## **PETITIONER:** - **S. UNNIKRISHNAN NAIR, AGED 56 YEARS T.C. 53/1761(1) AAROOS, SANTHIVILA, NEMOM P.O., THIRUVANANTHAPURAM 695 020.** **BY ADVS. SRI. M.A.THOMAS KUTTY SMT. ASHA CHERIAN SRI. CHERIAN CHACKO MANAYATH** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, VYDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM 695 004.** - **2 THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI BHAVANAM, PATTOM P.O., THIRUVANANTHAPURAM 695 004.** - **3 THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD LIMITED, POWER HOUSE BUILDINGS, CHALA P.O., THIRUVANANTHAPURAM 695 036.** - **4 THE EXECUTIVE ENGINEER, T.M.R. DIVISION, KERALA STATE ELECTRICITY BOARD LIMITED, THIRUMALA P.O., THIRUVANANTHAPURAM 695 032.** - **BY ADVS. SRI. K.S. ANIL, SC, KSEB SMT. A.G.ANEETHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) NO. 25387 OF 2021 2 ## **JUDGMENT** ## **Dated this the 08[th] day of March, 2022** The petitioner retired from the service of Kerala State Electricity Board Limited as Superintendent on 31.12.2020. While in service, a criminal case was registered against the petitioner for the offences punishable under Sections 406, 477-A and 468 of I.P.C. The crime was registered on the allegation that the petitioner had, while working in the T.M.R. Division, Thirumala, forged the signatures of an apprentice and falsified the registers and thereby misappropriated an amount of Rs.154/-. On filing of the final report, the case was taken on file as C.C.No.107 of 1993 of the Chief Judicial Magistrate’s Court, Thiruvananthapuram. After trial, the court acquitted the petitioner under Section 248(1) of Cr.P.C. 2. Registration of the crime, followed by the petitioner's arrest and remand had resulted in the petitioner being suspended from service on WP(C) NO. 25387 OF 2021 3 11.05.1990. He was reinstated in service on 02.01.1992 and no disciplinary proceedings was initiated based on the allegations that had resulted in registration of the crime. On the strength of his acquittal, petitioner sought regularization of the period of suspension. By Ext.P2, the request was rejected and the suspension period was directed to be treated as leave without allowance. Even though petitioner challenged the order, the Appellate Authority refused to interfere. Hence, this writ petition. 3. Learned Counsel for the petitioner relied on paragraph 13 of Ext.P1 judgment to contend that the petitioner stands acquitted of blame by the competent criminal court. Reference is made to Rule 57 of Part-I KSR to contend that, once an officer is acquitted of blame, his pay and allowances for the period he was placed under suspension following registration of criminal case ought to be regularised. In support of the contention the learned Counsel has placed reliance on the following decisions: WP(C) NO. 25387 OF 2021 4 **Santhoshkumar S. v. State of Kerala [ILR 2007 (3) Ker.101], Pathrose v. Kerala Water Authority [2008 (3) KLT 635], Gangadharan v. State of Kerala [2009(1) KLT 713], Anto T.D. v. State of Kerala [ILR 2017 (3) Ker. 563].** It is submitted that, going by Ext.P4 order of the Appellate Authority, the period of suspension is treated as leave without allowance, as if the said action amounts to imposition of a minor penalty. Learned Counsel contended that the regulations of the Board does not provide for imposition of such a penalty and even otherwise, no penalty can be imposed without following the prescribed procedure. 4. Learned Standing Counsel for the Board submitted that the petitioner’s acquittal under Ext.P1 judgment was for reason of the witnesses having turned hostile. Being so, the petitioner cannot claim that he was honourably acquitted. It is submitted that the disciplinary proceedings against the petitioner could not be finalised, as the file was misplaced in the section. WP(C) NO. 25387 OF 2021 5 ## 5. The rival contentions raised by the learned Counsel calls for careful scrutiny of the relevant portion of Ext.P1 judgment extracted hereunder: “Ext.P1: Paragraph 13: In this case no one had seen the accused making the forged entry. Nor is there any expert evidence in this regard. The attendance register marked by the prosecution would show that the accused was present on the date the entry was made. Even P.W.3 has not supported the prosecution that Ext.P2(a) entry was made by the accused. Even according to the prosecution P.W.3 was the person in charge of cash transactions and the accused was working only as an assistant of P.W.3. The evidence does not show that Rs.54/- which was allegedly misappropriated by the accused had been entrusted with the accused. P.W.5 was expected to state that the alleged forged entry was made by the accused. But he has also not supported the prosecution. It is true that P.W.3 had been given a cheque towards the arrears of stipend, as could be seen from Ext.P7(a) entry in the cheque register Ext.P7. This was done after he had sent Ext.P3 petition. The evidence would show that P.W.3 had not been paid the amount due to him any time and there was some entry in the concerned registers to the effect that the amount had been paid to him earlier. But there is no evidence to show that this entry was made by the accused. Nor is there any evidence to show that he had been WP(C) NO. 25387 OF 2021 6 entrusted with the amount in respect of which the misappropriation was allegedly committed by him. Hence the points under consideration are answered in the negative.” On such scrutiny, it was evident that the prosecution had failed to let in evidence to prove the petitioner's guilt. The trial court has specifically held that there is no evidence to show that the forged entry was made by the accused nor of the accused having been entrusted with the amount that is alleged to have been misappropriated. The petitioner having been acquitted of blame based on such findings, is entitled for the benefit of regularization of his suspension in accordance with Rule 57 of Part-I KSR. 6. Having found the petitioner to have been honourably acquitted, there is no need to fresh consideration of the petitioner’s request by the respondents. In the result, the writ petition is allowed. Exts.P2 and P4 orders are set aside. The respondents are directed to treat the period of suspension between 11.05.1990 and 02.01.1992 as duty for all purposes 7 WP(C) NO. 25387 OF 2021 including increments and earned leave and grant full pay and allowances for the said period. The retirement benefits of the petitioner shall be revised accordingly. The orders in terms of the above directions shall be passed and the consequential benefits disbursed, within three months of receipt of a copy of this judgment. ## **Sd/-** **V.G.ARUN JUDGE** NB/8-3 WP(C) NO. 25387 OF 2021 8 ## **APPENDIX OF WP(C) 25387/2021** ## **PETITIONER’S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 15.7.1994 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM IN C.C. NO. 107/1993. EXHIBIT P2 TRUE COPY OF THE ORDER NO. EB 4/TMR/DISCIPLINARY PROCEEDINGS/2020-21/714 DATED 28.12.2020 OF THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE APPEAL PETITION DATED 1.6.2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER NO. G.B. /APPEAL 438/06.21/2021-22/908 DATED 20.10.2021 OF THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 5.11.2021 IN W.P.(C) NO. 18980/2021 OF THIS HONBLE COURT.** **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE**