V. Radhakrishnan S/o Viswanathan v. Kerala State Electricity Board Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941 WP(C).No.19139 of 2018** ## **PETITIONER/S:** **V.RADHAKRISHNAN S/O.VISWANATHAN, AGED 66 YEARS,RETIRED ASST. EXECUTIVE ENGINEER,JAINISH VIHAR, MULAMKUNNATHU KAVU,THRISSUR (DIST.)** **BY ADVS. SRI.ANIL K.MOHAMMED SRI.V.S.MANSOOR** ## **RESPONDENT/S:** |**1**|**KERALA STATE ELECTRICITY BOARD LTD.**| |---|---| ||**REPRESENTED BY CHAIRMAN & MANAGING DIRECTOR,**| ||**VAIDYUTHI BHAVAN, PATTOM,**| ||**THIRUVANANTHAPURAM-695 004.**| |**2**|**THE CHIEF ENGINEER (HRM)**| ||**KERALA STATE ELECTRICITY BOARD LTD,**| ||**VAIDYUTHI BHAVAN, PATTOM,**| ||**THIRUVANANTHAPURAM-695 004.**| |**3**|**THE DEPUTY CHIEF ENGINEER**| ||**TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD**| ||**LTD,THRISSUR-680 004.**| ||**BY ADV. SRI.M.K.THANKAPPAN, SC, KERALA STATE**| ||**ELECTRICITY BOARD LIMITED**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.19139 of 2018 2** ## **JUDGMENT** ## This writ petition is filed seeking the following prayers:- _i) Call for the records leading to Exhibit P6 and quash the same by Writ of Certiorari._ _ii) Issue a Writ of Mandamus or Writ of similar nature or order or direction, commanding the respondents to sanction and to disburse the entire retirement benefits such as pension commutation and full pension, from 01.06.2007 onwards forthwith._ _iii) Issue a Writ of Mandamus commanding the respondents to treat the suspension period of the petitioner from 01.07.2004 to 29.11.2005 as duty and to disburse the consequential benefits immediately._ _iv. Issue a Writ of Mandamus commanding the respondents to pay the subsistence allowance of Rs.1,96,959/which was recovered from pension commutation immediately._ _v) Issue a Writ of Mandamus commanding the respondents to pay interest at the rate of 18% on his service benefits to be paid to the petitioner from his date of retirement (1/6/2007) till the date of payment._ 2. The petitioner retired from service of the 1[st] respondent as Assistant Executive Engineer on 31.05.2007. It is stated that while working as Assistant Executive Engineer at Vadakkanchery he had been implicated in a criminal case. Accordingly, he was suspended from service on 01.7.2004 and a memo of charges was issued to him. He was thereafter reinstated in November 2005. The petitioner faced trial before the Enquiry Commissioner and Special Judge and the petitioner was sentenced to undergo four years rigorous imprisonment and to pay ## **WP(C).No.19139 of 2018 3** a fine of Rs.50,000/-. The petitioner preferred an appeal against the judgment. While so, on the basis of conviction, Ext.P1 order was passed by the respondents reducing the pension payable to the petitioner by 30% and regularising the period of suspension as leave without allowance. 3. The petitioner had submitted a representation against Ext.P1 and had approached this Court filing W.P.(C) No.34670/2010 challenging the action taken against him. By Ext.P3 judgment dated 7.04.2017, the writ petition was disposed of directing consideration of the representation to be preferred by the petitioner by the board. It was also observed that the subsistence allowance already paid to the petitioner could not be recovered by the Board. The petitioner thereafter, preferred a detailed representation before the respondents as Ext.P5 and produced a copy of Ext.P4 appellate judgment rendered by this Court reversing the finding of guilt as against the petitioner. The petitioner submits that the acquittal by the appellate court was a completely honourable one and that as such, the petitioner was entitled to full pension. He sought orders orders treating the period spent on suspension as duty. However, by Ext.P6 proceedings dated 30.10.2017, petitioner's representations have been rejected by a cryptic order stating that there is no merit in the appeal petition preferred by the petitioner and the same is rejected. 4. The learned counsel for the petitioner submits that though this Court had directed the consideration of the issue, after noticing the ## **WP(C).No.19139 of 2018 4** acquittal of the petitioner, the consideration in Ext.P6 would make it clear that the order is completely vitiated by want of proper application of mind. It is contended that the findings in Ext.P4 had not been considered even in a cursory manner before the representation preferred by the petitioner as Ext.P5 were rejected. The learned counsel for the petitioner places reliance on Regulation 19 of Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1969 and a decision of a Division Bench of this Court reported in **KSEB Ltd. Tvm and Others v. Damodaran P. [2017 (4) KHC 141 (DB)** 5. Respondents 1 to 3 have placed a counter affidavit on record. It is stated that the 2[nd] respondent had considered the conviction of the petitioner and had passed Ext.P2 order, ordering reduction in pension by 30% as per Rule 2 (a) & (b) of Part III, KSR and had regularised the suspension period as leave without allowance. It is stated that Ext.P5 appeal petition had been considered by the respondents. It is stated that as per Ext.P4 judgment, the acquittal of the petitioner was for the reason that the prosecution could not prove the case beyond doubt and hence the same cannot be treated as an honourable acquittal. It is stated that it is for the said reason that the appeal preferred by the petitioner was rejected. 6. I have considered the contentions advanced on either side. Rule 2(a) of Part III KSR provides that withholding or withdrawal of pension or part thereof whether permanently or for a specified period, if ## **WP(C).No.19139 of 2018 5** the pensioner is convicted of a serious crime or is found guilty of grave misconduct. In the instant case, it appears that it was on the basis of the conviction of the petitioner by the Enquiry Commissioner and Special Judge that Ext.P1 proceedings had been issued against the petitioner. The petitioner was thereafter acquitted by Ext.P4 appellate judgment of this Court. The relevant findings in the judgment are to the effect that the prosecution sanction relied on as Ext.P9 had not been properly proved. Further it was found that even on merits and in the facts and circumstances of the case as discussed in the judgment, Ext.P7(b) (1) endorsement made by the accused would make the case of demand and acceptance of money by the accused suspicious. It was found that it is impossible to believe that the accused who made Ext.P7(b) (1) endorsement would demand illegal gratification for sanctioning additional load it was further held as follows:- _“ In view of the endorsement, the defence projected by the accused will have to be accepted, that money was not in fact voluntarily accepted by him. Of course, this is not a definite finding. But there is some suspicion regarding the case of demand and acceptance in view of Ext.P7(b) (1) endorsement.”_ It was also held that Ext.P7 (b) (1) endorsement makes the whole prosecution case suspicious and that it appears that the prosecution has something to suppress. After considering the entire aspects of the matter, this Court in Ext.P4 found that the accused in fact would not have demanded or accepted money for granting of load which he had already rejected. On these findings, the petitioner was acquitted. ## **WP(C).No.19139 of 2018 6** 7. Though the petitioner had preferred Ext.P5 appeal producing a copy of Ext.P4 judgment before the respondents, the only consideration as evident from Ext.P6 order after narration of the facts and contentions is as hereunder. _“The undersigned examined the appeal petition in detail with connected documents and observed that considering all the relevant facts and documents, there is no merit seen in the appeal petition and hence the appeal petition is rejected.”_ 8. The reduction from pension as provided in Rule 2 (a) of Part III, KSR would be justifiable only in a case where there is a subsisting conviction as against the employee. Ext.P2 was admittedly an order passed on the basis of the conviction entered by the Enquiry Commissioner and Special Judge. After Ext.P4 appellate judgment, the conviction ceases to operate and what is to be considered is the finding as contained in Ext.P5. Ext.P4 exonerates the petitioner and honourably acquits him. 9. In the above view of the matter, the petitioner's appeal/representation as submitted in Ext.P5 ought to have been examined taking note of the findings in Ext.P4 judgment. Since Rule 2(a) provides for reduction of pension, where the pensioner is convicted of a serious crime or is found guilty of grave misconduct, after the conviction had been set aside in Ext.P4, the action taken by the respondents to reduce the pension of the petitioner has no legs to stand. Ext.P2 therefore ought to have been re-examined in the light of Ext.P4 judgment. Refusal to do so vitiates the entire proceedings. The ## **WP(C).No.19139 of 2018 7** finding of the respondents that the petitioner is liable to suffer the reduction in pension and for treating of the period spent on suspension as leave without allowance is evidently based on his earlier conviction. Once the conviction is set aside and the petitioner is granted an honourable acquittal, the question would be whether the petitioner would be entitled to an automatic reckoning of the period spent by him under suspension as duty or not. 10. It is contended by the learned Standing Counsel appearing for the respondents that the provision applicable is Regulation 19 of Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulation 1969 and the disciplinary authority would have to consider the circumstances of the case and to pass fresh orders. 11. I have considered the decision relied on by the learned counsel for the petitioner also. It was held that Regulation 19 of Regulations, 1969 would be applicable to KSEB employees and Rule 18 of the Kerala Civil Services (Classification Control & Appeal) Rules would have no application, since there are specific regulations in the matter. However, in view of the fact that the petitioner had retired from service in the year 2007, I am of the considered opinion that remitting the matter to the Board would serve no purpose. On a reading of Ext.P4 judgment, I have no doubt in my mind that the same amounts to an honourable acquittal of the petitioner in the Criminal proceedings initiated against him. If that be so, I am of the opinion that Ext.P2 order passed on the strength of the conviction rendered against him is ## **WP(C).No.19139 of 2018 8** completely unjustifiable, after issuance of Ext.P4 judgment. The learned counsel for the petitioner submits that even subsistence allowances already paid to the petitioner had been recovered on the strength of Ext.P2. In any view of the matter, if the petitioner is honourably acquitted of the crime, then he would be entitled to the benefits that have been denied to him only on the basis of his earlier conviction by the trial court. 12. Having considered Ext.P4 in quite extenso, I am of the opinion that in the instant case, petitioner would be entitled to successfully contend that reduction from pension cannot be sustained in the light of Ext.P4. In the above view of the matter, I am of the opinion that the petitioner is entitled to full pension which has been denied to him only by the reason of the conviction which has now been set aside by Ext.P4. In the facts and circumstances of the instant case, I am also of the opinion that petitioner would be entitled to treat the period spent by him under suspension as duty for all purposes. Appropriate orders granting the benefits of the declaration as above shall be passed by the respondents within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **Sd/-** ## **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No.19139 of 2018 9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 : TRUE COPY OF THE ORDER NO.BO(CM) NO.2214/09(VIG)/AVI/6102/04 DATED 22-82009 ISSUED BY 1ST RESPONDENT.** **EXHIBIT P2 : TRUE COPY OF THE ORDER NO.EBVS.5/14/2004/940 DATED 13-10-2010 ISSUED BY 2ND RESPONDENT.** **EXHIBIT P3 : TRUE COPY OF JUDGMENT DATED 7-4-2007 IN WPC.NO.34670/2010** - **EXHIBIT P4 : A TRUE COPY OF THE JUDGMENT DATED 21-122016 IN CRL.A.66/2009** - **EXHIBIT P5 : A TRUE COPY OF THE REPRESENTATION DATED 26-4-2017 SUBMITTED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P6 : A TRUE COPY OF THE ORDER NO.VIG/A6/6102/2004/2017/2836 DATED 3010-2017 ISSUED BY THE 1ST RESPONDENT.** **RESPONDENTS EXHIBITS NIL** **// TRUE COPY //** **PA. TO JUDGE**