State of Kerala v. Krishnadas

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 20TH DAY OF NOVEMBER 2019 / 29TH KARTHIKA, 1941** ## **OP(KAT).No.338 OF 2017(Z)** **AGAINST THE ORDER IN O.A. 748/2014 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** - **1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, 695001.** **2 PRINCIPAL SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, 695001.** **3 DIRECTOR OF AGRICULTURE OFFICE OF THE AGRICULTURE, THIRUVANANTHAPURAM, KERALA, 695001.** ## **BY SR.GP SRI.ANTONY MUKKATH** **RESPONDENT/S:** **KRISHNADAS, S/O.PERIYASWAMY, AGED 52 YEARS, ASSISTNT AGRICULTURAL OFFICER, KRISHI BHAVAN, VELUR P.O., THRISSUR DISTRICT, PIN-680601, RESIDING AT ANGADIPARAMBIL HOUSE, NEAR FCI GODOWN, MULAMKUNNATHUKAVU, P.O.THRISSUR, KERALA-680581, MOBILE-9744669772.** **R BY ADV. SRI.SHOBY K.FRANCIS** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY** **HEARD ON 20-11-2019, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** OP(KAT) 338 of 2017 2 **==> picture [32 x 12] intentionally omitted <==** ## **JUDGMENT** Dated this the 20[th] day of November, 2019 ## **V.G.ARUN, J.** The original petition is filed by the State of Kerala and its officers, aggrieved by the order of the Kerala Administrative Tribunal in O.A.(EKM) 748 of 2014. The original application was filed by the respondent herein challenging Annexures A5 and A6 orders of the Government, to the extent they denied the applicant's right to full pay and allowances for the period of suspension from 1.6.1999 to 20.2.2003 and from 1.12.2004 to 25.6.2008; the date of his dismissal, till reinstatement. The facts which led to the filing of the original application are as follows:- The applicant, while working as Agricultural Assistant at OP(KAT) 338 of 2017 3 the Krishi Bhavan, Kannambra in Palakkad District, was indicted for commission of the offences punishable under Sections 7 and 13 (1) (d) of the Prevention of Corruption Act. VC No.4 of 1999 was registered against the applicant by the Vigilance and Anti-Corruption Bureau, Palakkad on the allegation that he had demanded and collected an amount of Rs.1,500/- as bribe on 1.6.1999. On production before the court pursuant to his arrest, the applicant was remanded to judicial custody, following which he was suspended from service with effect from 1.6.1999. By Annexure A1 proceedings dated 6.2.2003, the applicant was reinstated and he joined duty on 20.2.2003. 2. The criminal case registered against the applicant ended in his conviction and imposition of sentence of simple imprisonment for one year and fine of Rs.5,000/-. By reason of his conviction, the applicant was dismissed from service as 4 OP(KAT) 338 of 2017 per Annexure A2 order, effective from 1.12.2004. The applicant filed Criminal Appeal No.1032 of 2004 before the High Court challenging his conviction by the trial court. By Annexure A3 judgment dated 3.10.2007, the appeal was allowed granting the benefit of doubt to the applicant, finding that the prosecution had failed to prove the charges. Consequent upon the acquittal, Annexure A2 order of dismissal was set aside under Annexure A4 order dated 4.6.2008 and the applicant was ordered to be reinstated in service with immediate effect. The applicant thus rejoined service on 20.6.2008. 3. After rejoining service, the applicant requested the Government to regularise the periods during which he was kept out of service due to suspension and dismissal and to grant him all benefits, treating him to have been in service without break. By Annexure A5 order dated 7.2.2009, the OP(KAT) 338 of 2017 5 ## Government regularised the period of suspension, dismissal and the intervening periods in the following manner:- _“(i).......He is not eligible for full pay and allowances for the period as his acquittal is not an honourable one, and as he is not fully exonerated, pay and allowances will be limited to subsistence allowance admissible to him and the same will be limited to 5 years immediately preceding reinstatement subject to adjustment of the amount, if any earned by him through an employment as per Rule 56(7) and 56(4) Part I Kerala Service Rules.”_ 4. Aggrieved by Annexure A5, the applicant filed review petition before the Government which was considered and rejected under Annexure A6, with the slight modification of limiting the pay and allowances to three years preceding reinstatement, instead of the five years as ordered in Annexure A4. 5. The challenge against Annexures A5 and A6 orders in the original application was on the ground that the orders were without an impugned passed affording opportunity of hearing and that by Annexure A3 judgment, the OP(KAT) 338 of 2017 6 applicant had been honourably acquitted of the charges. The further contention was that the applicant is entitled to get all service benefits, to which he would have been entitled had he been in service, in view of Rule 18 (iii) (b) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (for short KCS (CC&A) Rules). In support of this contention, reliance was placed on the Full Bench decision of this Court in . _**State of Kerala v. Joseph [2015 (1) KLT 56]**_ 6. The Government opposed the claim on the ground that as per Rule 56(5) of Part I KSR, the payment of full pay and allowances on reinstatement after dismissal would depend upon the officer being fully exonerated of the charges. With regard to suspension, the period will be regularised as duty only for the purpose of pension, limiting the pay and allowances for the period of suspension to subsistence allowance which the applicant had already drawn, as per Rule OP(KAT) 338 of 2017 7 ## 56 B (5) and (7) of Part I KSR. 7. The Tribunal relied on the decision of the Full Bench in _'s_ case _**Joseph** (supra)_ to hold that the applicable provision, with respect to reinstatement based on acquittal in a criminal case, was Rule 18(iii) (b) of the KCS (CC&A) Rules, 1960 and not Rule 56 of the KSR. Consequently, Annexure A5 order was set aside. With respect to the period of suspension, the Tribunal directed the Government to consider the claim for regularisation in accordance with the relevant rules of the KSR, taking into consideration the contention of the applicant that his acquittal under Annexure A3 judgment was an honourable acquittal. The Tribunal further directed the monetary benefits from the date of dismissal till reinstatement to be sanctioned and disbursed to the applicant within three months and to take expeditious steps for refixation of pay and other benefits legally due to him. OP(KAT) 338 of 2017 8 8. In support of the challenge raised against the order of the Tribunal, reliance is placed on the decision of the Honourable Supreme Court in _**Radhakrishnan C.R v. State of Kerala and others [(2017) 13 SCC 365]**_ . In _**Radhakrishnan**_ 's case, the appellant had approached the court aggrieved by the denial of full service benefits for the period he was kept out of service on account of conviction in a criminal case, in spite of the conviction having been set aside and the appellant acquitted of the offences. The Apex Court found that, though acquitted, the appellant had not been fully exonerated of the charges. The contention that, based on his acquittal, the appellant was entitled for all service benefits as per Rule 56 of Part I KSR was considered. Applying Rule 56(2) of part 1 KSR, the Apex Court found that the entitlement for full pay and allowances would arise only when the authority competent to order reinstatement was of opinion that the officer who had OP(KAT) 338 of 2017 9 been dismissed, removed or compulsorily retired, was fully exonerated. The judgment in _**Radhakrishnan**_ 's case reveals that the attention of the Apex Court was not drawn to the provisions under the KCS (CC&A) Rules, especially Rule 18 (iii) (b), which was the applicable rule. Another pertinent fact is that Rule 18 (iii) (b) of the KCS (CC&A) Rules was amended as per SRO No.26/2017 dated 26.12.2016. After amendment, Rule 18(iii) (b) reads as follows:- _“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, only if he is fully exonerated of the charges on merit and no appeal is proposed against the acquittal and no further enquiry is proposed by the Disciplinary Authority.”_ _(the underlined being the amended portion)_ The judgment in _**Radhakrishnan**_ 's case was rendered by the Honourable Supreme Court on 27.3.2017, after Rule 18(iii)(b) was amended, whereby the claim for entire service benefits OP(KAT) 338 of 2017 10 during the period of dismissal was dependent on the officer being fully exonerated of the charges. This was the finding in _**Radhakrishnan**_ 's case also, even though rendered in the context of Rule 56 of Part I KSR. 9. The claim of the applicant in the instant case pertains to the period from 6.11.2004 to 4.6.2008, which is prior to the amendment to Rule 18(iii)(b). Hence, as far as the case at hand is concerned, the decision of the Full Bench in _**Joseph'**_ s case would apply on all fours. In _**Joseph** 's_ case, the Full Bench, after careful scrutiny of Chapter VII of Part I KSR, particularly Rules 54 to 57 therein, held that the rules deal with payments which an employee facing disciplinary proceedings would be entitled to on completion of the said proceedings. It was held that an employee who is suspended and thereafter dismissed from service, will, on his reinstatement consequent to his acquittal, be entitled to all OP(KAT) 338 of 2017 11 benefits which he would have been entitled to had been in service, as envisaged under rule 18(iii) (b) of the KCS (CC&A) Rules, 1960. It was specifically held that the pay and allowances due to the employee, for the period during which he was absent from duty on account of his dismissal consequent to his conviction, should be in the manner contemplated under Rule 18(iii) (b), entitling the officer for all benefits. The reasoning of the Full Bench, as contained in paragraph 5 of the judgment is as follows:- _“It can be seen from a perusal of R.18 of the KCS (CC&A) Rules that it starts with a non obstante clause and is a procedure that is to be adopted notwithstanding anything contained in R.15, R.16, R.17 and R.18 of the KCS (CC&A) Rules. That apart, as per the second proviso to R.18(iii), a special procedure is provided for dismissing or removing from service, a Government servant who is convicted on a criminal charge by a Criminal Court and sentenced to imprisonment and / or with fine. As per the said provision, the Government servant can be dismissed or removed from service forthwith, irrespective of the fact that an appeal is pending or that the execution of sentence is suspended in respect of the said conviction. The provisions of R.18(iii)(b) make it clear that, 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_ OP(KAT) 338 of 2017 12 _shall be issued forthwith to reinstate him in service entitling him to all the benefits to which he would have been entitled had he been in service. It is apparent from a reading of the provisions of R.18 of the KCS (CC&A) Rules, therefore, that it provides for a fast track method of dismissing, or removing from service, a Government servant based solely on his conviction on a criminal charge by a Criminal Court and on finding that he is sentenced to imprisonment and / or with fine. This is in sharp contrast to the procedure prescribed under R.15 to 17 for proceeding against a Government servant in connection with the imposition of a major penalty such as dismissal or removal from service, on him. The provisions of Chapter VII of Part I KSR and in particular R.54 to 57 of Chapter VII of Part I KSR deal with payments that an employee, who is facing disciplinary proceedings, may be entitled to on completion of the said proceedings against him.”_ 10. We are in respectful agreement with the decision of the Full Bench. A perusal of Rule 56 (1) shows that the rule is with respect to reinstatement of an officer, who was dismissed, removed or compulsorily retired, based on the result of an appeal or review filed by the officer. The reference in Rule 56(2) to full exoneration of the officer dismissed, removed or compulsorily retired, is in relation to his exoneration in the appeal or review mentioned in Rule 56(1). The appeal or review mentioned in Rule 56(1) can only OP(KAT) 338 of 2017 13 be the appeal and review provided under Rules 23 and 34 of the KCS (CC&A) Rules. Reading of Rules 23 and 34 makes it clear that appeal and review is provided against orders imposing penalties in accordance with the procedure prescribed under Rules 15 and 16. The order of dismissal on the ground of conduct which led to the conviction of an officer on a criminal charge, as provided under Rule 18(iii)(a), is not rooted to the disciplinary proceedings provided under Rules 15 and 16. In fact, Rule 18 starts with the non obstante clause that the rule applies to certain situation, not withstanding anything contained in Rules 15, 16 and 17. The dismissal under Rule 18(iii) (a) is effected without conducting an enquiry, on the strength of Clause (a) to the second proviso of Article 311(2) of the Constitution of India. Article 311 (2) mandates that no person who is a member of the civil service of the Union or all India service or a civil service of the State, OP(KAT) 338 of 2017 14 shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Clause (a) to the second proviso to Article 311 (2) provides for waiver of the requirement under Clause (2), when a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge. It is hence axiomatic that, dismissal pursuant to conviction on a criminal charge being based entirely on the conviction in a criminal charge, reinstatement pursuant to acquittal is not only automatic, but should also efface the blot in the officers' service based on the dismissal. It is in that context that an officer dismissed pursuant to his conviction is held to be entitled for entire benefits during his period of dismissal, treating him to have been in-service without break. OP(KAT) 338 of 2017 15 11. Of course, the subsequent amendment to Rule 18(iii) (b), by making the payment of benefits during the period of dismissal subject to the officer being fully exonerated of the charges on merit and no appeal being proposed against the acquittal and no further enquiry being proposed by the disciplinary authority, has brought about a drastic change to the entitlement of such an officer. The amendment being subsequent to the reinstatement of the applicant, cannot have any impact on his demand. In such circumstances, the Tribunal was justified in holding that the applicant was entitled for full pay and allowances for the period he was kept out of service pursuant to his dismissal, ie, from 6.11.2004 to 4.6.2008. With regard to the claim for full pay and allowances for the period of suspension, the Tribunal has only directed the Government to consider the applicant's claim taking into account the contention that his acquittal as OP(KAT) 338 of 2017 16 per Annexure A3 judgment was an honourable acquittal. The direction of the Tribunal is in terms of Rule 57 of the KSR and is therefore liable to be affirmed. Hence, we find no infirmity in the well reasoned order of the Tribunal. In the result, the original petition is dismissed. No order as to costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** Scl/20.11 OP(KAT) 338 of 2017 17 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE AMENDED OA IN OA(EKM) NO.748/14 ALONG WITH ANNEXURES.** - **ANNEXURE A1 TRUE COPY OF THE ORDER OF REINSTATEMENT ORDER DATED 06.02.2003 ISSUED BY THE 3RD RESPONDENT.** - **ANNEXURE A-1A TRUE COPY OF THE TRANSLATION OF ANNEXURE A1** - **ANNEXURE A2 TRUE COPY OF THE ORDER OF DISMISSAL FROM SERVICE DATED 06.11.2004 ISSUED BY THE 3RD RESPONDENT.** - **ANNEXURE A-2A TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A2.** **ANNEXURE A3 TRUE COPY OF THE TRUE COPY OF THE JUDGMENT PASSED BY THE HON'BLE HIGH COURT IN CRL.APPEAL NO.1032/2004 DATED 03.10.2007.** **ANNEXURE A4 TRUE COPY OF THE ORDER DATED 04.06.2008 ISSUED BY THE 3RD RESPONDENT.** - **ANNEXURE A5 TRUE COPY OF THE ORDER DATED 07.02.2009 PASSED BY THE 1ST RESPONDENT IN G.O. (RT)NO.210/2009/AD.** **ANNEXURE A6 TRUE COPY OF ORDER DATED 16.12.2009 PASSED BY THE 1ST RESPONDENT IN G.O. (RT) NO.2087/2009/AD.** **EXHIBIT P2 PHOTOCOPY OF THE REPLY STATEMENT OF THE 3RD RESPONDENT. EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 20/01/2017 IN OA.NO.748/2014.** OP(KAT) 338 of 2017 18