T. D. Anto v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 13TH DAY OF JUNE 2017/23RD JYAISHTA, 1939** **WP(C).No. 13662 of 2012 (G) ----------------------------** ## **PETITIONER(S): -------------** **T.D. ANTO, AGED 51 YEARS, S/O.DEVASSY, THATTIL MANDI HOUSE, P.O. CHAZHUR, THRISSUR DISTRICT.** **BY ADVS.SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** ## **RESPONDENT(S):** ## **--------------** **1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF THRISSUR, REPRESENTED BY CORPORATE MANAGER, CATHOLIC ARCH BISHOP'S HOUSE, THRISSUR-680005.** **3. THE DISTRICT EDUCATIONAL OFFICER, THRISSUR-680001.** **R1 & R3 BY GOVERNMENT PLEADER SRI. SHYAMJIRAM R2 BY ADVS. SRI.KURIAN GEORGE KANNANTHANAM (SR) SRI.TONY GEORGE KANNANTHANAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 13662 of 2012 (G)** **----------------------------** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER(S)'**|**EXHIBITS**| |**-----------------------**|| |**EXHIBIT-P1.**|**THE TRUE COPY OF SUSPENSION ORDER DATED**| ||**18.10.99.**| |**EXHIBIT-P2.**|**THE TRUE COPY OF ORDER DATED 2.11.99**| ||**ISSUED BY 2ND RESPONDENT.**| |**EXHIBIT-P3.**|**THE TRUE COPY OF JUDGMENT IN**| ||**O.P.NO.34925/2001 DATED 12.12.2001**| |**EXHIBIT-P4.**|**THE TRUE COPY OF ORDER DATED 18.9.02**| ||**ISSUED BY 3RD RESPONDENT.**| |**EXHIBIT-P5.**|**THE TRUE COPY OF ORDER DATED 7.3.07 OF 1ST**| ||**RESPONDENT.**| |**EXHIBIT-P6.**|**THE TRUE COPY OF JUDGMENT IN C.C.409/01 ON**| ||**THE FILE OF JFCM NO.II, THRISSUR DATED**| ||**29.4.2009.**| |**EXHIBIT-P7.**|**THE TRUE COPY OF SHOW CAUSE NOTICE DATED**| ||**21.8.09.**| |**EXHIBIT-P8.**|**THE TRUE COPY OF REPLY DATED 22.9.09.**| |**EXHIBIT-P9.**|**THE TRUE COPY OF ORDER DATED 9.12.09**| ||**ISSUED BY 3RD RESPONDENT.**| |**EXHIBIT-P10.**|**THE TRUE COPY OF ORDER 14.01.10 ISSUED BY**| ||**3RD RESPONDENT.**| |**EXHIBIT-P11.**|**THE TRUE COPY OF COMMUNICATION DATED**| ||**14.1.2010.**| |**EXHIBIT-P12.**|**THE TRUE COPY OF JUDGMENT IN W.P.(C)**| ||**NO.2606/10 DATED 28.1.2010.**| |**EXHIBIT-P13.**|**THE TRUE COPY OF ORDER DATED 16.4.2012 OF**| ||**1ST RESPONDENT.**| |**EXHIBIT-P14.**|**THE TRUE COPY OF ORDER DATED 03.06.2014 OF**| ||**1ST RESPONDENT.**| |**EXHIBIT-P135.**|**THE TRUE COPY OF COMMUNICATION NO.ED.**| ||**378/2014 DATED 16.06.14 OF 2ND RESPONDENT.**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**<br>**NIL**|| ||**TRUE COPY**| **P.S. TO JUDGE** **EL** **==> picture [31 x 12] intentionally omitted <==** **----- Start of picture text -----**<br> 'CR'<br>**----- End of picture text -----**<br> ## **A. Muhamed Mustaque, J.** ==================================== ## W.P.(C)No.13662 of 2012 ==================================== Dated this the 13[th] day of June, 2017. ## **JUDGMENT** 1. Petitioner, who was suspended from the service of an aided school consequent upon his custody in a criminal case for more than 48 hours, claims his full pay and allowances during the period of suspension. This was rejected by the authorities, including the Government, against which the petitioner has approached this court. 2. Petitioner's wife committed suicide. It appears that she left a suicide note, blaming the petitioner. Petitioner was apprehended by police and detained in custody for around 17 days. Petitioner was chargesheeted for the offence punishable under Section 498-A of the Indian Penal Code. Consequent upon the proceedings, petitioner was suspended from service with effect from 18.9.1999. The suspension continued till 17.4.2007. The re-instatement of the petitioner was W.P.(C)No.13662 of 2012 -:2:- based on a direction of the Government (Ext.P5). This direction was given when the Manager approached the Government for approving the appointment of one Jose in a vacancy created consequent upon the suspension of the petitioner. Government, at that time, after noting the lapse of many years on which the petitioner was put under suspension, ordered his re-instatement. The Government passed such an order giving paramount importance to public interest, since it was found that indefinite continuation of suspension was against the public interest. Thereafter, petitioner was acquitted in the criminal case by Ext.P6 judgment on 29.4.2009. The present controversy of the petitioner is in relation to the pay and allowances during the period of suspension. The school authorities insisted the petitioner to treat it as period of leave. Petitioner refused. The matter went up to the Government. The Government found that the petitioner was not acquitted of blame and he is not entitled for the full pay and allowances, by Ext.P13. This is under challenge. W.P.(C)No.13662 of 2012 -:3:- ## 3. Rule 67(3) of Chapter XIVA of the Kerala Education Rules stipulates ## as follows: ## _**67. Suspension** :(1)xxxx_ ## _(2)xxxxxx_ _(3) A teacher who is detained in custody on a Civil, Criminal or other proceedings for a period exceeding 48 hours, shall be deemed to have been under suspension during that period and he cannot draw his pay and allowance, other than subsistence allowance, allowable under the rule till the final termination of such proceedings._ ## 4. Rule 67A of the Kerala Education Rules provides as follows: _“67A. A teacher against whom proceedings have been taken either for his arrest for debt or criminal charge shall be considered as under suspension for any periods during which he is detained in custody or is undergoing imprisonment and not allowed to draw any pay and allowances during such periods other than subsistence allowance that may be granted in accordance with the rules, until the final termination of the proceedings taken against him.”_ ## 5. In fact, there is not much of difference between Rule 67(3) and Rule W.P.(C)No.13662 of 2012 -:4:- 67A, in as much as the provision only speaks about the denial of right to draw the pay and allowances during the period of suspension of a teacher till final determination of criminal proceedings or civil proceedings, as the case may be. In fact, this provision originally deals with certain other riders. The rider was omitted in the year 1978 vide G.O.(P)No. 37/78. The rider shows that, if the teacher is acquitted in a criminal case, he is entitled for full pay and allowances during the period of suspension treating the period as the period on duty. 6. This was explained in the notification issued by the Government, stating that the sentences are not in conformity with the rules relating to the Government servants in the matter, as referred to in Rule 91 of Chapter XIVA of the Kerala Education Rules. Therefore, in that view of the matter, it is appropriate to refer to Rule 91 of Chapter XIVA which states as follows: _“When a teacher who has been dismissed, removed, retired compulsorily or suspended is reinstated in_ W.P.(C)No.13662 of 2012 ## -:5:- _service or would have been reinstated but for his retirement on superannuation while under suspension, rules for the time being in force relating to Government servants in the matter shall mutatis mutandis apply.”_ 7. Rule 91 refers that, in the matter of re-instatement, rules referable to Kerala Service Rules applicable to Government servants should apply. Therefore, it is appropriate to refer to Rule 57 of Part I of Kerala Service Rules, which states as follows: _“ An officer who is detained in custody, whether on a criminal charge, or otherwise, for a period exceeding forty-eight hours, or is undergoing imprisonment, shall be deemed to be under suspension with effect from the date of commencement of the detention or imprisonment, as the case may be, and shall not be allowed to draw any pay and allowances during such period of suspension other than any subsistence allowance and other allowances that may be granted in accordance with Rule 55, until he is reinstated in service. An adjustment of his pay and allowances for such periods should thereafter be made_ W.P.(C)No.13662 of 2012 -:6:- _according to the circumstances of the case, the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt) of its being provided that the officer’s liability arose from circumstances beyond his control.”_ 8. Rule 57 shows that a teacher would be entitled for full pay and allowances only in the event of acquittal of blame, if it is relatable to a criminal case. Therefore, if the omitted part continues to exist in the rule, certainly will run counter to the purport of Rule 57 of Part I KSR, in as much as the omitted part gives absolute right for drawing full pay and allowances on being acquitted in a criminal case. Whereas Rule 57 of Part I KSR imposes a condition for claiming full pay and allowances. Condition _vis-a-vis_ that he should be acquitted of blame. Therefore, Government thought it fit to omit the provisions, which enable the employee to draw full pay and allowances on being acquitted in a criminal case and the right would depend upon the circumstances referred in Rule 57 Part I KSR. W.P.(C)No.13662 of 2012 -:7:- 9. In the light of the discussion as above, the question is, whether the petitioner is entitled to full pay and allowances in the facts and circumstances of the case. 10.Learned counsel for the petitioner argues that the petitioner was acquitted of blame without there being any evidence on record to implicate him with the alleged offence and therefore, he is entitled for full pay and allowances. Learned counsel for the management would argue that the petitioner is not entitled for full pay and allowances during the period of suspension as Rule 67(3) is very clear in this case. It is further argued that management had appointed many other persons in the vacancy and they have drawn salary during the period and therefore, if petitioner is ordered to be entitled for drawing full pay and allowances, there will be multiplicity of pay and manager will be liable to pay the amount. Petitioner never bothered to challenge those appointments and they are also not included in the party array. W.P.(C)No.13662 of 2012 -:8:- 11.Government Pleader argued that witnesses have turned hostile and petitioner settled the case out of court with the relatives of the deceased and petitioner happened to be acquitted on particular circumstances narrated above and therefore it cannot be said that the petitioner was acquitted of blame. - 12.In the light of the above contentions, the following points would arise for consideration: - i) Whether Rule 67(3) and Rule 67A would have any bearing on Rule 91 of the same Chapter XIVA ? ii) Whether petitioner was acquitted of blame in a criminal case? iii)Whether payment of salary during the period of suspension to other approved hands would dis-entitle the petitioner from claiming full pay and allowances and non-joinder of such persons will have an impact on the writ petition? - 13.In so far as the first point is concerned, in relation to interpretation of Rule 67(3) and Rule 67A, the argument of the Manager has to be repelled for more than one reason. W.P.(C)No.13662 of 2012 -:9:- 14.Rule 67(3) and Rule 67A are related to the drawing of full pay and allowances during the period of suspension in relation to a criminal case. It does not speak about the eligibility of suspended teacher to claim full pay and allowances. In fact, the omitted part refers to eligibility of such person. By deletion of such portion related to eligibility under Rule 67(3) and Rule 67A, it will only govern in respect of the right of the suspended teacher to draw full pay and allowances during the period of suspension. In fact, much emphasis has to be given to the word used as 'not allowed to draw'. That means, he is not entitled to draw full pay and allowances during the period of suspension. The omitted portion makes it clear that the very purported intention of the rule making authority is to have Rule 67(3) and Rule 67A in its statute, On the other hand, Rule 91 speaks about the eligibility of such suspended employee on being re-instated into service. Therefore, Rules 67(3), 67A and 91 are distinct and separate. Rule 67(3) and Rule 67A are in relation to the right of the W.P.(C)No.13662 of 2012 ## -:10:- suspended employee to claim full pay and allowances during the period of suspension and Rule 91 is related to the eligibility of suspended employee on being reinstated in service. 15.This court is of the considered view that, in the matter of reinstatement, the relevant provision, as far as the teacher is concerned, is Rule 91 and not Rule 67(3) or Rule 67A. The operation of Rule 67(3) and Rule 67A would come to an end the moment the teacher is reinstated. When a teacher is reinstated, the relevant provision that governs is Rule 91. 16.The second point is, whether the petitioner is entitled for full pay and allowances, in terms of Rule 91. Rule 91 refers that rules relating to Government servants would apply _mutatis mutandis._ The relevant rule applicable is Rule 57. Rule 57 clearly spells that Government servant would be entitled for full pay and allowances, if he is acquitted of blame related to a criminal case. In fact, the Government also understood what is the impact of Rule 57. This W.P.(C)No.13662 of 2012 -:11:- court in _**Gangadharan v. State of Kerala**_ [2009 (1) KLT 713] held that the suspended officer, who was exonerated of all blames, is entitled for full pay and allowances during the period of suspension treating the period as duty for all purposes. The criminal case judgment is placed before me, produced as Ext.P6. The relevant portion is as follows: _“As stated above, P.W.1 to 5, the material witnesses are not supporting the prosecution. No witness deposed regarding harassment by the accused and there is no evidence to show that there was any demand for dowry or any property from the side of the accused. There is no evidence to prove that Ext.P2 letter is written by the deceased. On a consideration of the entire evidence on record, I am of the view that there is no materials to prove the offence alleged against the accused. So the point is found against the prosecution.”_ 17.This finding clearly shows that the petitioner was acquitted of blame as there was no iota of evidence to implicate the petitioner. Merely because witnesses have turned hostile, it cannot be said that the petitioner was not acquitted of blame. When prosecution completely W.P.(C)No.13662 of 2012 -:12:- failed to prove a case against the accused, certainly, it has to be held that the accused is acquitted of blame. It is the duty of the prosecution to prove the case. Therefore, in the facts and circumstances of the case, I have to hold that the petitioner was acquitted of blame. 18.The next point is, whether payment of salary to persons, who are appointed during the suspension period, would make the petitioner ineligible to claim full pay and allowances. The statutory provision is very clear and unambiguous. If petitioner is entitled for full pay and allowances for the period as per the statutory provision, it cannot depend upon the rights of others. The appointment of others is the creation of the Manager. The department, if chosen to approve such persons, the department has to be blamed for that. The authorities ought to have bestowed their attention to the purport of Rule 91 of Chapter XIVA. It is to be noted that the suspension was pursuant to criminal proceedings. The ramification arising on account of such W.P.(C)No.13662 of 2012 -:13:- suspension ought to have been kept in mind while approving the service of others. Therefore, this court cannot hold that those persons are necessary parties to the proceedings. The writ petition is, accordingly, allowed. The impugned order is set aside. The competent among the respondents shall disburse the full pay and allowances less subsistence allowance already paid to the petitioner, within three months from the date of receipt of a copy of this judgment. **A.Muhamed Mustaque, Judge.** sl.