The Principal Secretary to Government, Forest and Wildlife Department, Government Secretariat, Thiruvananthapuram; Chief Conservator of Forest, Thiruvananthapuram; Conservator of Forest Olavakkode, Palakkad v. P.K. Balasubramanian (Retd. Junior Superintendent, Forest Division, Palakkad)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 8[TH] DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944 OP(KAT) NO. 191 OF 2015** ## **AGAINST THE ORDER IN OA 140/2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** - 1 THE PRINCIPAL SECRETARY TO GOVERNMENT FOREST AND WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. - 2 CHIEF CONSERVATOR OF FOREST THIRUVANANTHAPURAM. - 3 CONSERVATOR OF FOREST OLAVAKODE, PALAKKAD BY ADV GOVERNMENT PLEADER, SRI. BIJOY CHANDRAN - SR. GP ## **RESPONDENT:** P.K. BALASUBRAMANIAN RETD. JUNIOR SUPERINTENDENT, FOREST DIVISION, PALAKKAD, RESIDING AT PULICHIKKODE HOUSE, KAVILPPAD POST, PALAKKAD BY ADV SRI.U.BALAGANGADHARAN THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **OP(KAT) 191/2015** **-2-** ## **JUDGMENT** S.V. Bhatti, J. We have heard Mr Bijoy Chandran, learned Sr. Government Pleader and Mr U. Balagangadharan for the parties. 2. The respondents in O.A No.140/2012 before the Kerala Administrative Tribunal, Thiruvananthapuram (for short, ‘the Tribunal’), are the petitioners. The sole respondent was the applicant in O.A No.140/2012. We refer to the parties arrayed in the Original Application before the Tribunal. 3. The applicant is an employee working in Forest Department and, on 31.08.1981, joined as Lower Division Clerk. On 13.04.1987, the applicant was promoted as Upper Division Clerk in Palakkad Division. On 28.11.1991, the applicant was arrested in Crime No.159/91 and tried in Sessions Case No.24/93. On 28.11.1991, the applicant was suspended under Rule 57 of Part I KSR. The suspension of applicant was continued **OP(KAT) 191/2015** **-3-** from 28.11.1991 to 18.05.1999. In terms of G.O (Rt) No.158/99/Forest dated 16.04.1999, the applicant was directed to be reinstated, and on 19.05.1999 the applicant reported for duty. On 03.02.2001, the Sessions Court convicted the applicant in Sessions Case No.24/93. On 08.06.2001, the applicant was removed from service on being convicted by the court of sessions on proven charges. Criminal Appeal No.196/2001 was filed against the conviction dated 03.02.2001 in Sessions Case No.24/93. On 05.06.2003, Criminal Appeal No.196/2001 was allowed. On 27.10.2003, the Government directed the reinstatement of the applicant and the reinstatement order dated 11.11.2003 was issued by the Chief Conservator of Forest. The applicant re-joined duty and, thereafter, represented for regularising the period of suspension and out-of-service. 4. The 1st respondent issued Annexure A6 order dated 22.11.2004, limiting the benefits to which the applicant is entitled upon reinstatement as follows: **OP(KAT) 191/2015** **-4-** Government have examined the matter in details and are pleased to regularise the period of absence of Sri. P.K Balasubramanian Upper Division Clerk from duty including the period of suspension proceeding his dismissal as duty for all purposes except pay and allowances limiting the same to subsistence allowances for which he would have been entitled to had been on suspension for the whole period under Rule 56(4)* (7) part-I Kerala Service Rules. (Add emphasis) 5. The applicant made further representations, resulting in Annexure A8 communication dated 08.12.2011. Through Annexure A8, the 1[st] respondent opined that the acquittal by the High Court was on the benefit of the doubt available to an accused convicted in a matter, and it is not a complete acquittal on merits. Therefore, the 1[st] respondent replied that the applicant is not entitled to full pay and allowances during the suspension period. Hence, OA No.140/2012 was filed before the Tribunal. 6. The Tribunal, through the order dated 04.11.2014 by applying Rule 18 of KCS & (CCA) Rules, allowed the application **OP(KAT) 191/2015** **-5-** and directed that the period the applicant was out of service, as a result of suspension and removal from service shall be treated as duty for pay and allowances also, and he shall be paid the balance salary after deducting the subsistence allowance drawn by the applicant. Hence the Original Petition. 7. Mr Bijoy Chandran, Sr. Government Pleader, contends that the jurisdiction exercised by the Tribunal suffers from patent infirmity and/or a severe flaw in the law. To point out the mistake committed by the Tribunal, he categorises the period between 28.11.1991 till 11.11.2003 into two different categories. The period between 28.11.1991 and 18.05.1999 since has been treated as a suspension while in service, the applicant is entitled to the subsistence allowance, and to the extent the applicant is entitled to such allowance, the respondent/Government had paid it. The period between 08.06.2001 and 11.11.2003 attracts the removal, and in other words, the applicant is out of service. Therefore, for the case on **OP(KAT) 191/2015** **-6-** hand, Rule 18 of KCS & (CCA) Rules does not allow an extension of any benefit to the suspension period, ie.28.11.1991 to 18.05.1999. 8. A Full Bench of this Court in _State of Kerala v. Joseph[1]_ has considered the effect of Rule 18 of KCS & (CCA) Rules and has held that the Rule has no application to the suspension period. He prays for setting aside the order under Review. 9. Adv. U. Balagangadharan contends that the applicant was placed under suspension and removed from service for a ground or alleged offence not connected to employment in any manner. Crime No.159/91 is a false and unsustainable case and this Court rightly granted the acquittal in Criminal Appeal No.196/2001. The case considered by the Full Bench deals with a situation not considered in this case, and therefore, the said judgment is not applicable. The Tribunal examined the 1 2015 (1) KLT 56 (FB) **OP(KAT) 191/2015** **-7-** entitlement for pay and allowances during the suspension period on the reasons leading to the applicant’s suspension; therefore, he prays for sustaining the order under judicial review before us Article 227 of the Constitution of India. 10. We have perused the record and noted the submissions advanced by the counsel appearing for the parties. At the outset, we would like to observe that the order under review prima facie does not provide a reason or interpretation by referring to which Rule 18 of KCS & (CCA) Rules is made applicable even for the period of suspension. This ground alone is sufficient to set aside the order impugned before us. The said course will not adjudicate the main controversy between the parties. The applicant is claiming full pay and allowances during the suspension period. The applicant relies on Rule 18 of KCS & (CCA) Rules which reads as under: "18. Procedure in certain cases:Special Notwithstanding anything contained in rules 15, 16 and 17, **OP(KAT) 191/2015** **-8-** (i) where a penalty is imposed on a Government servant on the ground of conduct which had led to his conviction on a criminal charge; or (ii) where the Disciplinary Authority is satisfied for reason to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Governor is satisfied that in the interest of the security of the State it is not expedient to follow such procedure; the Disciplinary Authority or the Governor, as the case may be, may consider the circumstances of the case and pass such orders thereon as he deems fit: Provided that before passing such orders under clauses (i) and (ii) the Commission shall be consulted in cases where such consultation is necessary under the rules: [Provided further that where a Government servant is convicted on a criminal charge by a criminal court and sentenced to imprisonment and/or with fine,- (a) he shall be dismissed or removed from service forthwith by invoking the provisions contained in item (a) of the second proviso to clause (2) of Article 311 of the Constitution of India irrespective of the fact authority an appeal is pending or that the execution of sentence is suspended in respect of the said conviction, and (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: Provided also that in case where conviction is on a summary trial for petty offences and the sentence is for a fine upto Rupees Two Thousand only such **OP(KAT) 191/2015** **-9-** conviction shall not be treated as a conviction for the purpose of this rule and for the entry into service or retention in service as the case may be. 11. We are concerned with Proviso (b), and on a reading of the said proviso, it is clear that the proviso operates- a) in a case conviction is subsequently set aside in appeal or otherwise b) the Government servant is acquitted of the charges, c) the order of dismissal or removal ceases to have effect d) important is that revised orders shall be issued forthwith to reinstate the employee into service, entitling him all the benefits to which he would have been entitled had he been in service. The last portion, narrated as (d), makes it sufficiently clear that the Government makes an order reinstating the employee into service, entitling him to all the benefits to which the employee would have been entitled had he been in service. The emphasis is on the words ‘had he been in service’. It cannot be gainsaid **OP(KAT) 191/2015** **-10-** in service jurisprudence that the applicant is out of service during the suspension period. Applying Rule 18 of KCS & (CCA) Rules even for the period of suspension, in our considered view, for the above reasons is illegal. It warrants our interference under our supervisory jurisdiction. Hence, for the reasons noted above, the order of the Tribunal under challenge is set aside. The Original Petition is allowed. No order as to costs. **S.V.BHATTI** **JUDGE** **BASANT BALAJI JUDGE** _JS_ **OP(KAT) 191/2015** **-11-** ## **APPENDIX OF OP(KAT) 191/2015** PETITIONER ANNEXURES EXHIBIT P1 A TRUE COPY OF OA NO.140/2012 ALONG WITH ANNEXURES ANNEXURE A1 A TRUE COPY OF THE ORDER DATED 06.05.1999 REINSTATING THE APPLICANT IN SERVICE SUBJECT TO THE VERDICT IN THE CRIMINAL PROCEEDINGS I.E.SC 24/93. ANNEXURE A2 A TRUE COPY OF THE PROCEEDINGS OF THE CHIEF CONSERVATOR OF FOREST DATED 08.06.2001 REMOVING THE APPLICANT FROM SERVICE VIDE ORDER NO.B510927/2001. - ANNEXURE A3 A TRUE COPY OF THE JUDGMENT OF THE HIGH COURT OF KERALA IN CRL. APPEAL NO.196/2001. - ANNEXURE A4 A TRUE COPY OF THE JUDGMENT OF THE SUPREME COURT OF INDIA IN CRIMINAL APPEAL NO.79/2004. - ANNEXURE A5 A TRUE COPY OF THE ORDER OF THE CHIEF CONSERVATOR OF FOREST DATED 11.11.2003 REINSTATING THE APPLICANT IN SERVICE PURSUANT TO THE JUDGMENT OF THE HIGH COURT OF KERALA ACQUITTING THE APPLICANT. ANNEXURE A6 A TRUE COPY OF THE G.O.(RT) NO.479/2004/F AND WLD OF FOREST AND WILD LIFE DEPARTMENT DATED 22.11.2004 DENYING HIM PAY AND ALLOWANCE DURING SUSPENSION AND REMOVAL. ANNEXURE A7 A TRUE COPY OF THE REQUEST DATED 28.01.2011 SUBMITTED BY THE APPLICANT TO THE 1ST RESPONDENT FOR RECONSIDERATION OF ANNEXURE A6 ORDER DENYING HIM PAY AND ALLOWANCE DURING THE SUSPENSION PERIOD. ANNEXURE A8 A TRUE COPY OF ORDER NO.1154/A1/11/F AND WLD OF THE FOREST AND WILD LIFE DEPARTMENT DATED **OP(KAT) 191/2015** **-12-** 08.12.2001. EXHIBIT P2 A COPY OF COUNTER AFFIDAVIT FILED BY THE 3RD PETITIONER/3RD RESPONDENT ON BEHALF OF R1 AND R2 EXHIBIT P3 A TRUE COPY OF THE ORDER OF THE TRIBUNAL EXHIBIT P4 A COPY OF FULL BENCH JUDGMENT IN STATE OF KERALA VS. N.G.JOSEPH