T. Sasidharan v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938** ## **WP(C).No. 21981 of 2006 (P)** **------------------------------------------** **PETITIONER(S) :** **-------------------------** **T.SASIDHARAN, S/O. SANKARAN, THACHATT HOUSE, GIRISH NAGAR, NALLALAM, KOZHIKODE, (DRIVER, K.S.R.T.C., KOZHIKODE. (RETD.)** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** **RESPONDENT(S) :** - **-----------------------------** **1. KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS SECRETARY, TRIVANDRUM.** **2. MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRIVANDRUM.** ## **BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 21981 of 2006 (P)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** **EXHIBIT P1: A COPY OF THE ORDER NO.VLE-09721/2003 THIRUVANANTHAPURAM DATED 25.03.2004.** **EXHIBIT P2: A COPY OF THE JUDGMENT IN CRL.R.P.NO.1944/2005 DATED 17.08.2005.** **EXHIBIT P3: A COPY OF THE JUDGMENT IN 12815/2006 DATED 24.05.2006.** **EXHIBIT P4: A COPY OF THE ORDER NO.D.DIS-1523/05/APL DATED 21.07.2006 OF THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **P.V.ASHA, J.** ----------------------------------------------------- ## W.P(C) No.21981 of 2006-P ---------------------------------------------------Dated this the 15[th] day of July, 2016 ## **JUDGMENT** The petitioner challenges Ext.P4 order by which it was ordered that he was deemed to have retired from service on 25.3.2004, on his reinstatement with effect from that date. 2. The petitioner was a driver in the Kerala State Road Transport Corporation (`KSRTC' for short). He was convicted in a crime case No.16/1998 on the file of the First Class Judicial Magistrate-V, Kozhikode and was sentenced to pay a penalty of Rs.2,500/- or in default to undergo simple imprisonment for 3 months for the offence committed under Section 506(1) of I.P.C. Consequent to this, the KSRTC had imposed on him a penalty of barring of increment for a period of six months temporarily. But on the basis of a direction from the Government issued on 17.12.2003 to the Corporation to re-examine the matter, the Executive Director of the KSRTC passed Ext.P1 order No.VLE409721/03 dt.25.3.2004 removing him from service. The petitioner filed an appeal against it before the KSRTC and the W.P(C) No.21981 of 2006-P 2 appeal was disposed of by Ext.P4. While passing Ext.P1 order, the Executive Director stated that consequent to the direction of the Government, a charge sheet was issued to the petitioner under Rule 18 of Kerala Civil Service (Classification, Control and Appeal) Rules 1960 (`KCS (CC&A) Rules' for short) and explanation was obtained and as the explanation was found not satisfactory, Ext.P1 order was passed removing him from service. Whileso, the judgment of the Magistrate Court was modified as per Ext.P2 judgment dated 17.8.2005 in Crl.R.P No.1944 of 2005 reducing the fine to Rs.1,900/-, taking note of the fact that the petitioner would have lost his job in case the fine amount exceeded Rs.2,000/-. In view of the judgment in the Crl.R.P, the petitioner filed an appeal before the KSRTC and requested for re-instatement. Immediately thereafter he approached this Court in W.P(c) No.12815 of 2006 and by judgment dated 24.5.2006, this Court directed the respondents to consider and pass orders on his representation. Thereafter the KSRTC passed Ext.P4 order modifying the punishment of removal from service and reinstating him in service w.e.f 25.3.2004. The Chairman and Managing Director while disposing of the appeal, stated that the order of removal was W.P(C) No.21981 of 2006-P 3 passed on the basis of the direction from the Government, after initiating proceedings under Rule 15 of KCS(CC&A) Rules, 1960 and after obtaining explanation from the petitioner. Further taking note of the judgment in Criminal Appeal reducing the fine to Rs.1,900/- it was found that, removal from service was not necessary as per the existing rules. But while reinstating him in service with effect from 25.3.2004 as per Ext.P4 order dated 21.07.2006, it was ordered that he would be deemed to have retired compulsorily with effect from 25.03.2004 and would be eligible for pensionery benefits on the assumption that he retired from service on 25.3.2004. 3. Heard the learned counsel appearing for the petitioner. 4. The learned counsel for the petitioner submitted that no proceedings were initiated against the petitioner under Rule 15. It is also pointed out that this Court had, as per order dated 15.06.2015, had directed the learned Standing Counsel for KSRTC to produce the enquiry files and other related records. The learned Standing Counsel requested for time, when the matter came up on 30.06.2015 and thereafter on 08.01.2016. So far the enquiry files are not produced. Moreover it is also W.P(C) No.21981 of 2006-P 4 pointed out by the learned counsel for the petitioner that, while issuing Ext.P4 order the respondents have accepted the contention of the petitioner that the removal was ordered under Rule 18 of the KCS&CCA Rules, 1916, with specific reference to reduction of fine below Rs.2,000/-, as can be seen from paragraph 1 of Ext.P1 order, wherein the Executive Director who passed Ext.P1 order refers to Rule 18 of the KCS (CC&A) Rules while ordering his removal from service. It can also be seen from paragraph 1 of Ext.P1 that proceedings were issued under Rule 18 immediately after the conviction by the Magistrate Court and the KSRTC had also taken note of the fact that the petitioner had neither committed any gross misconduct nor was he involved in any serious disciplinary case while in service as driver. It was thereafter that they referred to the direction of the Government to re-examine the case of the petitioner and issued alleged proceedings under Rule 15. Even though it refers to a charge sheet issued on 4.2.2004 and to an explanation obtained thereon, the respondents have not produced the enquiry files. At any rate, it is seen that the removal was ordered only on the basis of the conviction in the criminal case and it is an admitted fact that the petitioner was never involved 5 W.P(C) No.21981 of 2006-P in any disciplinary case during his service career. 5. Under the above circumstances, it is the case of the petitioner that he was entitled to reinstatement with all benefits as provided under Rule 18 (iii)(b) of KCS (CC&A) Rules,1960 which provides that, when the conviction is set aside in appeal or otherwise and the Government servant is acquitted of charges, the order of dismissal or removal ceased to have effect and revised order 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. Under the proviso to this Rule, it is provided that when conviction is on a summary trial for petty offences and sentence is for a fine upto Rs.2,000/- such conviction shall not be treated as a conviction for the purpose of this Rule. 6. In this case, the petitioner was convicted for an offence under Section 506(1) of I.P.C, which was after summary trial. Even though the judgment of the Magistrate Court was one sentencing him to a fine of Rs.2,500/-, since it was reduced to Rs.1,900/- as per Ext.P2 judgment, the petitioner was not liable to be treated as convicted. In that event, the provision contained in Rule 18(iii)(b) has to be applied and the petitioner W.P(C) No.21981 of 2006-P 6 has to be reinstated in service granting him all the benefits. The petitioner relies on the judgment of the Full Bench of this Court reported in **State of Kerala v. Joseph** [2015 (1) KLT 56 (F.B)], wherein the question regarding pay and allowances to employees during the period of absence consequent to conviction till reinstatement, on acquittal, was considered and it was held that such employees are entitled to full back wages on reinstatement. In this case, even assuming that proceedings were initiated on the basis of the direction by the Government, such proceedings were initiated only on the basis of the fact that the petitioner was convicted in the criminal case. Ext.P1 as well as Ext.P4 make it clear that the petitioner was never involved in any offence during his service career. In the above circumstances, the proceedings if any, initiated against the petitioner - Ext.P1, which culminated in Ext.P4, cannot stand. Moreover, once the KSRTC themselves found that the petitioner was entitled to reinstatement, then there was no reason for awarding a punishment of compulsory retirement on him. Petitioner was entitled to continue in service till the date of his superannuation, which was to fall on 31.1.2006. Therefore, the petitioner was entitled to have an order in his favour allowing him to continue W.P(C) No.21981 of 2006-P 7 till the date of his retirement on superannuation. In that event, he would be entitled to all consequential benefits from the date of effect of his reinstatement, which is 25.03.2004, till his retirement on 31.01.2006. In the above circumstances, orders imposing the punishment on the petitioner by Exts.P1 and P4 are set aside. This Writ Petition is accordingly allowed declaring that the petitioner would be deemed to have been reinstated w.e.f 24.3.2004 and continued in service till the date of his superannuation on 31.01.2006, with all consequential benefits. The respondents are therefore directed to recompute the pensionery benefits due to the petitioner reckoning the date of his retirement as 31.1.2006 and to re-fix and revise his pensionery benefits accordingly and disburse the benefits within a period of four months from the date of receipt of a copy of this judgment. Sd/- **(P.V.ASHA, JUDGE)** rtr/