Sivan T P v Assistant Engineer, KSEB; Deputy Chief Engineer Electrical Circle; Chief Engineer (HRM), KSEB

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** ## **WP(C).No.21454 OF 2015(F)** ## **PETITIONER:** **SIVAN T P., S/O. C.K GOVINDAN, ELECTRICITY WORKER,66 KV SUB STATION, SREKANDAPURAM,KANNUR** **SRI.KALEESWARAM RAJ KUM.A.ARUNA KUM.THULASI K. RAJ SRI.VARUN C.VIJAY** ## **RESPONDENTS:** - **1 ASSISTANT ENGINEER, KSEB 66 K V SUB STATION, SREEKANDAPURAM, KANNUR 670 631** - **2 DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, VAIDHYUDHI BHAVANAM, KANNUR 670 002** - **3 CHIEF ENGINEER (HRM), VAIDHYUDHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695 004** **SRI.K.S.ANIL, SC, KSEB SMT.ANEETHA A.G., SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.21454 OF 2015(F) 2 ## **JUDGMENT** ## **Dated this the 15th day of January 2021** The petitioner says that while he was working as an Electricity Worker in the services of the Kerala State Electricity Board (KSEB), he was issued with Ext.P3 notice to show cause as to why his services be not terminated, since he had been implicated in a criminal case prior to his entry into service. 2. The petitioner concedes that he was arrayed as an accused in Crime No.53/1999 of the Iritty Police Station and charged under Sections 326 and 448 of the Indian Penal Code (IPC) but that after trial, the Court acquitted him of the imputation under Section 448, but convicted him to undergo rigorous imprisonment for a period of two years, along with the fine, under Section 326 of the IPC. 3. The petitioner says that this judgment was taken up in an appeal before the Sessions Court, Thalassery, by filing Criminal Appeal No.596/2003, in which again, his conviction under 326 was confirmed but that the punishment was reduced to rigorous imprisonment for one year. The petitioner asserts that against this judgment, he preferred Crl.R.P. No.3722/2008 and that Ext.P2 order had been issued by this WP(C).No.21454 OF 2015(F) 3 Court staying the sentence on certain terms. 4. I notice that when this writ petition was initially filed, the challenge was only against Ext.P3 show cause notice. However, pending this lis, the KSEB issued Ext.P5 order removing the petitioner from service, apparently invoking the provisions of Rule 10(b) of the KS & SSR and this constrained the petitioner to seek an amendment of this writ petition, producing the said order as Ext.P5. Consequent to the grant of permission by this Court for amending the writ petition, the petitioner challenges Exts.P3 and P5 and argues that they are both bad for the reason that the criminal proceedings against him has not yet been concluded. 5. Today, when this matter was called, Sri.Kaleeswaram Raj, the learned counsel for the petitioner, brought to my notice that this Court has now disposed of Crl.R.P.No.3722/2008 filed by his client, through a judgment dated 29.09.2020, wherein, the findings of the Trial Court and that of the First Appellate Court on Section 326 IPC has been confirmed, but that since the offence is not one that involves moral turpitude, the sentence has been modified to simple imprisonment till the rising of the Court and to pay compensation of Rs.15,000/- to the de facto complainant. He WP(C).No.21454 OF 2015(F) 4 therefore, prayed that Ext.P5 be set aside and the Board be directed to reconsider his case, keeping in mind the declarations of law made by this Court in **KSEB Ltd., Tvm and Others v. Damodaran P.** [2017 (3) KLT 794], in which the ambit of Rule 19 of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1969 had been explained and made clear that the KSEB has power to either modify the punishment or to reinstate an employee, if sufficient cause is made out. Sri.Kaleeswaram Raj, therefore, prays that this writ petition be ordered at least to such extent. 6. In response, the learned standing counsel for the KSEB, Smt.Aneetha A.G., submitted that a counter affidavit has been filed on record to the unamended writ petition, in which it has been explained that, under the sanction of Rule 10(b) of the KS & SSR, it is incumbent upon the KSEB to verify the conduct and antecedents of every employee before they are allowed into their services. She submitted that since the petitioner had already been implicated in a criminal case and since conviction against him under Section 326 IPC has now been upheld by all the Courts, the KSEB was well within its power to have issued Ext.P5; and she, therefore, prayed that WP(C).No.21454 OF 2015(F) 5 this writ petition be dismissed. She relied upon the judgment of the Hon'ble Supreme Court in **Jameel Ahammed Qureshi v. Municipal Council** [1991 suppl. 1 SCC 302] in substantiation of her contentions that the dismissal of the employee was justified when he has been convicted and sentenced for an offence in moral turpitude. She concluded her submissions by saying that as per Government Order No.G.O.(P) 26/98/P&ARD dated 27.08.1998, if an employee is convicted by a Criminal Court and sentenced to undergo imprisonment or payment of fine, he will require to be dismissed or removed from service, irrespective of the fact that an appeal is pending or that the execution of sentence is suspended. 7. When I assess the submissions of the KSEB in support of Ext.P5, it is indubitable that, had the petitioner been convicted of an offence of moral turpitude, then the declarations of the Hon'ble Supreme Court in **Jameel Ahammed Qureshi** (supra) would apply in all its force. However, when I examine the judgment of this Court in Crl.R.P.No.3722/2008, it is unmistakable that this Court has reduced the punishment imposed upon the petitioner, after finding him guilty under Section 326 of the IPC, because the WP(C).No.21454 OF 2015(F) 6 offence alleged is not one that involves moral turpitude. 8. Consequently, therefore, a corollary question would arise as to what would be the jurisdiction of the KSEB in these matters, particularly in view of the provisions of the Regulations aforementioned. 9. As rightly stated by Sri.Kaleeswaram Raj, a learned Division Bench of this Court in **Damodaran P.** (supra) has expatiated on the purlieus of the Regulations and has found that the KSEB is competent to reinstate an employee who has been removed from service or to set aside punishments for valid and reasonable cause. 10. Coming to the facts of this case, there is no doubt that the petitioner has been convicted under Section 326 of the IPC; but it has been declared by this Court in the judgment in Crl.R.P.No.3722/2008 that the offence is not one that involves moral turpitude. 11. As I have said above, for this reason, the judgment of the Supreme Court in **Jameel Ahammed Qureshi** (supra) is distinguishable on the facts involved; while the Government Order referred to by Smt.Aneetha A.G. would have no application because Ext.P5 had been issued pending the Revision of the petitioner against his conviction and his WP(C).No.21454 OF 2015(F) 7 punishment has been modified subsequently through the judgment of this Court in the Crl.R.P. 12. Since it is thus ineluctable that the KSEB had issued Ext.P5 before the judgment of this Court had been delivered, I am of the firm view that the case of the petitioner deserves to be reconsidered by its competent Authority, taking note of the applicable Regulations as also the judgment of this Court **Damodaran P.** (supra). Resultantly and since Ext.P5 has been issued even before the judgment of this Court in Crl.R.P.No.3722/2008 had been delivered, I set it aside; however with a concomitant liberty being reserved to the KSEB to issue fresh orders with respect to the petitioner's service, adverting to my observations above and implicitly following the ratio in **Damodaran P.** (supra). This writ petition is thus ordered. **Sd/- DEVAN RAMACHANDRAN** Stu **JUDGE** WP(C).No.21454 OF 2015(F) 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN CRL.APPEAL NO 596/2003 OF THE SESSIONS COURT,THALASSERY** - **EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT IN CRL.M.A 11454/2008 IN CRL.RP NO 3722/2008** - **EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P4 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT** - **EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 29/09/2020 IN CRL. REV. P. NO.3722/2008.** **EXHIBIT P7 TRUE COPY OF THE RECEIPT DATED 20/10/2020 ISSUED BY THE JUDICIAL 1ST CLASS MAGISTRATE, MATTANNUR.**