Vijayambika K. v. Kerala Water Authority and The Managing Director, Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939** **WP(C).No. 28495 of 2017 (J) ----------------------------** **PETITIONER(S):** **-------------** **VIJAYAMBIKA K.,** **EXECUTIVE ENGINEER (PA TO SE), OFFICE OF THE SUPERINTENDING ENGINEER, P H CIRCLE, KERALA WATER AUTHORITY, ALAPPUZHA (UNDER ORDER OF DISMISSAL) RESIDING AT ARYA, KANJIRAMKUZHY, PERINAD P.O., KOLLAM-691 601.** **BY ADV. SRI.P.C.SASIDHARAN** **RESPONDENT(S):** **--------------** **1. THE KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, THIRUVANANTHAPURAM-695001.** **2. THE MANAGING DIRECTOR,** **KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, THIRUVANANTHAPURAM-695 001.** **R1-R2 BY ADV. SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28495 of 2017 (J)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE COPY OF THE ORDER IN CRL.M.A NO. 6726/14 IN CRL.A NO. 1097/14 DATED 29.10.2014.** **EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 19.12.2014. EXHIBIT P3 TRUE COPY OF THE EXPLANATION DATED 10.2.2015. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.2.2016. EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE. EXHIBIT P6 TRUE COPY OF THE EXPLANATION DATED 29.6.2017. EXHIBIT P7 TRUE COPY OF THE NOTICE OF HEARING. EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 23.7.2017. EXHIBIT P9 TRUE COPY OF THE NOTICE OF HEARING DATED 27.7.2017. EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 29.7.2017. EXHIBIT P11 TRUE COPY OF THE ORDER DATED 29.7.2017. RESPONDENT'S EXHIBITS: NIL** ## **//TRUE COPY//** **P.A. TO JUDGE** ## **STK** ## **P.V. ASHA, J.** **-------------------------------W.P.(C) No.28495 of 2017** **----------------------------------** Dated this the 20[th] day of November, 2017 ## **JUDGMENT** The petitioner, who has been working as an Executive Engineer was convicted in C.C.No.73/2000 as per judgment dated 16.10.2014 of the Enquiry Commissioner and Special Judge, Thiruvananthapuram for offences under Section 13(1)(d) r/w S.13(2) of Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.1,00,000/- with a further sentence to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.25,000/- for offence under Section 120(B) of IPC r/w S.13(c)(d) r/w S.13(2) of the Prevention of Corruption Act, 1988. 2. The petitioner filed Criminal Appeal No.1097/2014. In Crl.M.A.No.6726/2014 filed in that appeal, this court suspended the sentence as per Ext.P1 order dated 29.10.2014. The 2[nd] respondent issued Ext P2 ## **W.P.(C) No.28495 of 2017** ## **-: 2 :-** show cause notice dated 19.12.2014 to the petitioner against the proposal to remove/dismiss her from service, in the light of the conviction. She submitted Ext P3 reply stating that an order of dismissal or removal can be passed only after conducting an inquiry. 3. Petitioner moved Crl. M.A. No. 7447/2015 in the Criminal Appeal, praying for a stay of further proceedings pursuant to show cause notice Ext P2. By Ext P4 order the Crl M.A.7447/2014 was disposed of expressing inability to pass such orders as sought by petitioner in a Crl. Appeal. The matter was left to the wisdom of the authority to decide whether it should proceed or not with disciplinary action till the appeal is disposed of. 4. It appears the 2[nd] respondent did not pursue Ext P2 show cause further. While so, on 29.05.2017, the 2[nd] respondent issued Ext P5 show cause notice, in supercession of Ext P2 show cause notice. Petitioner was asked to show cause why action as contemplated in the ## **W.P.(C) No.28495 of 2017** ## **-: 3 :-** 2[nd] proviso to Rule 18 of KCS(CC&A) Rules 1960 should not be taken against her, in the light of the conviction by the Criminal Court. The petitioner was asked to submit her statement of defence if any, within 15 days and also to inform whether she desired to be heard in person. The petitioner thereupon submitted Ext.P6 reply on 29.06.2017, denying the charges pointing out that the sentence was already suspended in Crl.M.A. and the matter has been pending consideration in the appeal by the High Court and requesting not to proceed with the disciplinary action. Pointing out the order passed in Ext P4 order in the Cr.M.A.7447/2015, she requested not to proceed with the disciplinary action till disposal of Criminal Appeal. Thereafter, by Ext.P7 notice issued on 21.07.2017, the 2[nd] respondent informed her that a personal hearing would be held on 25.07.2017 at 11.30 a.m. The petitioner thereupon submitted Ext.P8 letter dated 23.07.2017 requesting for an adjournment by two weeks saying that she was suffering from viral fever and ## **W.P.(C) No.28495 of 2017** ## **-: 4 :-** was not in a position to attend the hearing. Thereupon, the 2[nd] respondent issued Ext.P9 notice fixing the hearing on 28.07.2017 and asked her to report before 5 p.m. on that day, failing which it would be presumed that she has nothing to present. The petitioner thereafter on 29.07.2017, informed the 2[nd] respondent by Ext.P10 letter saying that the notice issued to her to attend the hearing on 28.07.2017 came to her notice only on 29.07.2017 because she was in her mother's place. 5. The first respondent issued Ext.P11 order on 29.07.2017, dismissing the petitioner from service under Rule 18 of the Kerala Civil Service (CC & A) Rules 1960. In this order the 2[nd] respondent stated that petitioner did not produce any medical certificate in support of her claim for absence and adjournment. He states the effort he made to serve the notice on the petitioner by hand and thereafter sent a mail to her. The 2[nd] respondent therefore proceeded to dismiss the petitioner invoking Rule 18(a) of the KCS(CC&A) Rules 1960, under the 2[nd] proviso to clause ## **W.P.(C) No.28495 of 2017** ## **-: 5 :-** (2) of Article 311 of the Constitution of India, irrespective of the suspension of sentence in the pending appeal, observing that the irregularities are serious in nature. 6. The petitioner challenges Ext.P11 order on the ground that there was no circumstances to invoke Rule 18 of the rules and to dismiss the petitioner from service and that the 2[nd] respondent passed the order even before being satisfied that the conduct which led to her conviction warranted a dismissal. It is alleged that when the conviction and sentence are already stayed by this Court the 2[nd] respondent should have independently examined the matter and that a mere conviction alone could not result in conviction. It is also the case of the petitioner that the order of dismissal was passed without giving her an opportunity for personal hearing and without following the procedures for imposing major penalty under Kerala Civil Service (CC & A) Rules. 7. Heard the learned counsel for the petitioner as well as the learned standing counsel for the respondents. ## **W.P.(C) No.28495 of 2017** ## **-: 6 :-** 8. It is an admitted fact that the petitioner has already been convicted by the Court of Enquiry Commissioner and Special Judge, Thiruvananthapuram for offence under Section 13(1)(d) r/w S.13(2) of Prevention of Corruption Act, 1988 and for offence under Section 120(B) of IPC r/w S.13(c)(d) r/w S.13(2) of the Prevention of Corruption Act, 1988. That this Court had suspended the sentence of imprisonment alone as per Ext.P1 order dated 29.10.2014. On 16.02.2016 this Court considered the application of the petitioner in Crl.M.A.7447/2015 praying for stay of all further proceedings pursuant to the show cause notice issued by the Water Authority in Ext P2, in 2014. In Ext P4, this Court did not stay the proceedings based on Ext P2 show cause notice; but left it to the wisdom of the respondents. Ext.P5 show cause notice was issued thereafter on 29.05.2017 in accordance with second proviso to Rule 18 of the Kerala Civil Service (CC & A) Rules 1960, which allows action under the 2[nd] proviso to Article 311 of the Constitution of India. **-: 7 :-** ## **W.P.(C) No.28495 of 2017** 9. The question whether the person convicted in a criminal case can be allowed to continue just because the sentence is suspended has already been considered by the Apex Court in a number of cases including the judgment in **Dy. Director of College Education (Admn.) v. S.Nagoor Meera** [(1995)3 SCC 377]. It is well settled that in case the conviction is set aside in the Crl.Appeal, Rule 18 of the Kerala Civil Service (CC & A) Rules, 1960 itself provides for the remedy to the accused/delinquent Government servant, in the event of acquittal in appeal or revision. The relevant para of the ## above judgment reads as follows:- “ 9. The Tribunal seems to be of the opinion that until the appeal against the conviction is disposed of, action under clause (a) of the second proviso to Article 311 (2) is not permissible. We see no basis or justification for the said view. The more appropriate course in all such cases is to take action under clause (a) of the second proviso to Article 311(2) once a government servant is convicted of a criminal charge and not to wait for the appeal or revision, as the case may be. If, however, the government servant-accused is acquitted on appeal or other proceeding, the order can always be revised and if the government servant is reinstated, he will be entitled to all the benefits to which he would have been entitled to had he continued in service. The other course suggested, viz., to wait till the appeal, revision and other remedies are over, would not be advisable since it would mean continuing in service a person who has been convicted of a serious offence by a criminal court. xxxx xxxxxx xxxxxxx xxxxxxx” ## **W.P.(C) No.28495 of 2017** ## **-: 8 :-** 10. In the above circumstances, the action of the respondent in dismissing the petitioner from service cannot be said to be illegal. The said order does not suffer from any illegality just because the petitioner was not personally heard. The 2[nd] respondent stated that petitioner sought adjournment on the ground of virus fever without producing medical certificate and she avoided service of notice of the next hearing keeping away from home and by switching off her mobile phone. 11. The contention of the petitioner is that a penalty of dismissal can be ordered only after a full-fledged enquiry. But Rule 18 of the rules is a special provision which can be invoked when the government servant is convicted. There is no basis for the contention that the 2[nd] respondent did not arrive at the satisfaction that the dismissal was warranted or that the 2[nd] respondent should have waited for the disposal of the Criminal appeal. Clause (b) of Rule 18 provides that the government servant shall be entitled to re-instatement with all benefits ## **W.P.(C) No.28495 of 2017** **-: 9 :-** in case the appeal or revision is allowed. No other contention is raised in the Writ Petition. 12. However as the order Ext P11 is issued invoking Rule 18 of KCS(CC&A) Rules, 1960, it is necessary to have a look at Rule 18, which reads as follows: “Notwithstanding anything contained in Rules 15, 16 and 17. (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 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 that an appeal is pending or that the execution of sentence is suspended in respect of the said conviction, and (aa) before taking final decision in the matter, factors including the conduct of the employee, ## **W.P.(C) No.28495 of 2017** ## **-: 10 :-** gravity of misconduct, impact of misconduct on the administration, and other extenuating circumstances, if any, shall be taken into account by the Government for taking its own decision as to whether the Government servant is to be dismissed or removed from service or not. If it is decided to dismiss or remove the Government servant from service, he shall be given reasonable opportunity to show cause why his services should not be dismissed or removed. Before passing final orders as per clause (a) above, the Commission shall also be consulted. (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 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.” 13. From a reading of Ext P11, it is seen that disciplinary proceedings were already initiated against the petitioner on allegations relating to irregularities in execution of World Bank aided water supply scheme under Kollam circle in June 1993. After placing the petitioner under suspension, memo of charges were issued to her and defence statement was called for. An ## **W.P.(C) No.28495 of 2017** ## **-: 11 :-** enquiry Tribunal was constituted and the Tribunal, submitted an enquiry report after conducting inquiry in respect of 12 works. Out of the 12 works covered by the enquiry, 2 were inquired into by the Vigilance and Anticurruption Bureau, which resulted in the conviction and sentence of the petitioner in CC No.73 of 2000, by the Enquiry Commissioner and Special Judge Thiruvananthapuram. Consequent to conviction the 2[nd] respondent initiated action against the petitioner under the proviso to clause 2 of Article 311 of the Constitution of India. The 2[nd] respondent has stated in Ext P11 that even though Ext P2 show cause notice was issued in 2014, on directions from Government Ext P5 show cause notice was issued proposing action under Rule 18. After submitting reply, the petitioner requested for adjournment of the personal hearing under the guise of health issues without producing medical certificate. 2[nd] respondent found that she kept herself away from her residence and kept her mobile phone switched off, in order to evade notice for ## **W.P.(C) No.28495 of 2017** ## **-: 12 :-** hearinig. The 2[nd] respondent rightly found that Rule 18(a) provided for dismissal or removal of a government servant convicted by a criminal court, even if the appellate court had suspended the sentence. Rule 18(a) itself provides for dismissal or removal on conviction by criminal court, even when the sentence is suspended. Moreover in the light of the judgments of the apex court in **Government of A.P V. B. Jagjeevan Rao** : (2014)13 SCC 239, **Director of Collegiate Education V. S. Nagoor Meera** : [(1995)3 SCC 377], it is settled law that dismissal or removal are permissible consequent to conviction in a criminal case, especially on corruption charges. It was held therein : **:** _“_ 10. What is really relevant thus is the conduct of the government servant which has led to his conviction on a criminal charge. Now, in this case, the respondent has been found guilty of corruption by a criminal court. Until the said conviction is set aside by the appellate or other higher court, it may not be advisable to retain such person in service. As stated above, if he succeeds in appeal or other proceeding, the matter can always be reviewed in such a manner that he suffers no prejudice.” ## 14. Therefore the contention as to satisfaction of the 2[nd] respondent on the question of retention is ## **W.P.(C) No.28495 of 2017** ## **-: 13 :-** untenable. The 2[nd] respondent has given sufficient opportunity to petitioner to show cause against the proposal to dismiss her. 2[nd] respondent has considered her reply also, though she evaded the personal hearing. However there is nothing to show that the 2[nd] respondent has consulted with the PSC on this issue, as provided in clause (aa) below the 3[rd] proviso, which provides that “. ”If it is decided to dismiss or remove the Government servant from service, he shall be given reasonable opportunity to show cause why his services should not be dismissed or removed. Before passing final orders as per clause (a) above, the Commission shall also be consulted.” Thus though the action of the 2[nd] respondent cannot be found fault with, in proceeding with the action, Ext P11 order does not show consultation with Public Service Commission. 15. In the above circumstances, it is ordered that the implementation of Ext P11 order shall be only after consultation with Kerala Public Service Commission. Therefore the respondents would be free to consult with the Public Service Commission and to keep the petitioner ## **W.P.(C) No.28495 of 2017** **-: 14 :-** under suspension till then, if the petitioner continues in service. The writ petition is disposed of with the above observation. sd/- **P.V. ASHA, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//