Surendran P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939** ## **WP(C).No. 24261 of 2016 (G)** ## **------------------------------------------** ## **PETITIONER(S) :** **-------------------------** **SURENDRAN.P, 57 YEARS, S/O.MADHAVI AMMA, RETD. CLERK, DR. K.B MENON MEMORIAL HIGHER SCHOOL, RESIDING AT PARALYATH HOUSE, MEZHATHUR POST, PALAKKAD 679 534.** ## **BY ADV. SRI.U.BALAGANGADHARAN** **RESPONDENT(S) :** - **-----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHI, THIRUVANANTHAPURAM 695 001.** **3. THE DEPUTY DIRECTOR OF EDUCATION, CIVIL STATION, PALAKKAD 678 001.** **4. THE DISTRICT EDUCATIONAL OFFICER, OTTAPALAM, PALAKKAD 679 101.** **5. THE MANAGER, DR. KB MENON MEMORIAL HIGH SCHOOL, THRITHALA 679 534.** - **R1 TO R4 BY SR.GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH R5 BY ADV. SRI.BABU PAUL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** ## **WP(C).No. 24261 of 2016 (G)** ## **-----------------------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JUDGMENT IN CRIMINAL APPEAL 179 AND 180 OF 1998 DATED 14-01-2004 OF ADDITIONAL SESSIONS JUDGE/ FAST TRACK COURT I PALAKKAD.** **EXHIBIT P2 A TRUE COPY OF THE PROCEEDINGS OF THE MANAGER, THRITHALA HIGH SCHOOL, THRITHALA DATED 25-01-2005.** **EXHIBIT P3 A TRUE COPY OF THE JUDGMENT DATED 06-04-2015 IN CRL.REV PETITION NO. 324/2004 OF THIS HON'BLE COURT.** - **EXHIBIT P4 A TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER TO THE MANAGER DATED 12-11-2015.** - **EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 06-01-2016 ISSUED BY THE DEO TO THE MANAGER OF THE SCHOOL.** - **EXHIBIT P6 A TRUE COPY OF PROCEEDINGS OF DEO, OTTAPALAM DATED 29-03-2016.** - **EXHIBIT P7 A TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT DPI DATED 30-04-2016.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE.** **Msd.** ## **P.V.ASHA J.** ## **------------------------------------** ## **W.P.(C).No.24261 of 2016** ## **-------------------------------------** Dated this the 23[rd] day of November, 2017 ## **J U D G M E N T** Petitioner, who retired as Clerk from an aided School on 31.05.2016, has filed this writ petition seeking a direction to the respondents to treat the period of his absence from service, on account of a criminal case as duty for all purposes and to grant him all service benefits. 2. While working as Clerk in an aided School, petitioner was placed under suspension with effect from 12.09.1996, when he was remanded to police custody, on account of a crime registered against him. He was thereafter convicted as per Ext.P1 judgment dated 27.11.1998 in C.C.No.7/1997 of the Judicial First Class Magistrate Court, Pattambi, for offences under Sections 381, 457 and 380 of IPC. Criminal Appeal No.179 of 1998 filed by the petitioner was dismissed on 14.01.2004. Thereafter, as per Ext.P3 judgment dated 06.04.2004 in the Criminal Revision Petition No.324 of 2004 filed by him, petitioner was found not guilty and the conviction and W.P.(C).No.24261 of 2016 2 sentence passed by the court below was set aside, allowing the Revision Petition. This Court found that there was no legal evidence connecting the petitioner. 3. In the meanwhile, the Manager had issued Ext.P1 order dated 25.01.2005 dismissing the petitioner from service with effect from 12.09.1996-the date of his suspension, consequent to the conviction. Thereafter, on his acquittal as per Ext.P3 judgment, the Manager of the School re-instated the petitioner with effect from 01.03.2016 and sought approval for the same from the District Educational Officer, who approved the same as per Ext.P6 order. The petitioner re-joined and thereafter retired from service on 31.05.2016. Petitioner was thus kept out of service for the period from 12.09.1996 to 01.03.2016. Petitioner thereafter approached the DPI with Ext.P7 representation requesting to sanction his pensionary benefits reckoning his entire service from 7.6.1982 to 31.05.2016. He thereafter filed the writ petition alleging inaction on it and seeking directions to the respondents to reckon the entire period during which he was kept out of service for all service benefits and to grant his terminal benefits reckoning also the period W.P.(C).No.24261 of 2016 3 during which he was kept out of service on account of suspension and thereafter, consequent to his removal. The writ petition is filed at that stage. 4. The 4[th] respondent has filed a counter affidavit, stating that disciplinary proceedings were initiated against the petitioner under Rule 75 of Chapter XIV A of KER on the basis of the judgment in criminal case; a show cause notice was issued to petitioner seeking his explanation as to the proposal to remove him from service and after considering his representation, he was removed from service with effect from 12.09.1996. It is further stated that when the criminal revision petition was allowed and the petitioner was acquitted and exhonorated from all the charges, he approached the Manager for reinstatement and the Manager forwarded the request to the 4[th] respondent and on the basis of his application, petitioner's appointment was approved with effect from 01.03.2016. 5. In the counter affidavit, the 4[th] respondent does not say anything regarding the entitlement or otherwise of the petitioner for the benefits for the period during which he was kept out of service. Therefore the claim of W.P.(C).No.24261 of 2016 4 the petitioner for the service benefits has to be examined, with reference to the rules. 6. The sole reason for removing the petitioner from service was the conviction of the petitioner in a criminal case. The crime was registered against him for offences under Section 381 and Section 457 of IPC. He was placed under suspension on 12.09.1996. He was convicted by the trial court on 27.11.1998. He was dismissed from service on 25.01.2005 as per Ext.P2 order, with effect from the date of suspension i.e., 12.09.1996. Consequent to the acquittal, he was re-instated in service with effect from 01.03.2016. 7. From Ext.P2 order of dismissal, it is seen that the dismissal was solely on account of the conviction in the criminal case, as provided in the Government Order No. 28/03 (G.O.(P).No.28/03 (P) & ARD dated 18.09.2003) as well as the provisions contained in Clause (a) of the 2[nd] proviso to Rule 18 (iii) of Kerala Civil Service (Classification Control & Appeal) Rules, 1960. Reinstatement was ordered under Clause (b) of the proviso to Rule 18 (iii) which provides that he would be entitled to all the service benefits as if he continued in service. W.P.(C).No.24261 of 2016 5 Clause (a) to the 2[nd] proviso to Rule 18 (iii) provides for dismissal or removal of a Government servant, consequent to conviction in criminal case. Clause (b) to the 2[nd] proviso to Rule 18 of Kerala Civil Service (Classification, Control and Appeal) Rules read as follows: “(b) 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:” 8. The question whether a person who was removed from service on account of conviction in criminal case and was re-instated on the basis of acquittal in appeal, is entitled to the entire service benefits was the subject matter for consideration in the judgment of the Full Bench of this Court in **State of Kerala and Another v. N.G.Joseph** [2014 (4) KHC 841]. After interpreting the provisions contained in Rule 18 (iii) of KCS CC & A Rules, 1960, it was held that such a person, who was kept out of service on account of criminal case when re-instated after his acquittal in criminal case, would be entitled to the entire service benefits for the period from the date of W.P.(C).No.24261 of 2016 6 his dismissal to date of re-instatement, as provided in Rule 18 (iii) (b) Kerala Civil Service (Classification, Control and Appeal) Rules, 1960. However, the dismissal with effect from the date of suspension was found illegal. It was held that the period from date of suspension to date of dismissal has to be considered for regularization in accordance with the provisions contained in Part I KSR. 9. In this case the petitioner was placed under suspension pending the criminal case. He was dismissed on 25.01.2005. The decision of the Full Bench in **N.G.Joseph'** s case (supra) as well as the provisions in Clause (b) below the 2[nd] proviso to Rule 18 (iii) of the Kerala Civil Service (Classification, Control and Appeal) Rules, make it clear that, in case the conviction is subsequently set aside in appeal or revision 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 to all the benefits to which he would have been entitled, had he been in service. Therefore, the petitioner is entitled to get the entire service benefits including the arrears of pay for the period during which he was kept out W.P.(C).No.24261 of 2016 7 of service on account of dismissal from service up to his date of reinstatement on acquittal i.e., for the period from 25.01.2005 to 28.02.2016. 10. However the period during which he was kept under suspension till the date of his dismissal as per Ext.P2 order i.e from 12.09.1996 to 25.01.2005, is to be regularized by the Manager, who placed him under suspension, in accordance with the provisions contained in Part I KSR. This Court in the Criminal Revision Petition had found that there is no evidence to connect the petitioner to any of the charges alleged against the petitioner. It is seen that disciplinary proceedings did not proceed further. 11. In the result there shall be the following declarations and directions: - (i) The petitioner would be entitled to all the service benefits for the period from 25.01.2005 to 28.02.2016 i.e the period between the date of dismissal and date of re-instatement; - (ii) The 5[th] respondent shall pass orders of regularization of the period of suspension of the petitioner for the period from 19.02.1996 to W.P.(C).No.24261 of 2016 8 25.01.2005, within a period of 'two months' from the date of receipt of a copy of the judgment. (iii) On the basis of the orders to be passed by the 5[th] respondent, the respondents 1 to 4 shall see that the pay and pensionary benefits due to the petitioner are fixed, sanctioned and disbursed to him, within a further period of 'three months'. Sd/- **P.V.ASHA, JUDGE.** AS