Allowed

A.Lakshmanan v. Kseb

Kerala HC29 Nov 2011WP(C)/30657/2010

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition challenging the denial of service benefits after a departmental punishment was imposed despite the petitioner's acquittal in a criminal domestic violence case. The Court held that initiating disciplinary action after an 'honourable acquittal' based on the same facts is unsustainable, ordered the quashing of the punishable orders, and directed the au

What did the court decide?

Exhibits P7, P8, P9 and P13 quashed; respondent directed to take a fresh decision on regularisation of suspension/dismissal period and payment of back wages within two months.

A.Lakshmanan Vs Kseb — Service and Employment | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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TUESDAY, THE 29TH DAY OF NOVEMBER 2011/8TH AGRAHAYANA 1933

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WP(C).No. 30657 of 2010 (F)

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PETITIONER(S):

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LAKSHMANAN.A., LINEMAN GRADE-II, K.S.E.B., ELECTRICAL SECTION, CHERPULASSERY, PALAKKAD DISTRICT.

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BY ADVS.DR.K.P.SATHEESAN

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SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR

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RESPONDENT(S):

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1. KERALA STATE ELECTRICITY BOARD,

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(K.S.E.B. IN SHORT), REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-4.

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2. THE CHIEF ENGINEER (H.R.M.),

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K.S.E.B., VYDYUTHI BHAVAN, PATTOM,

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THIRUVANANTHAPURAM-4.

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3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, K.S.E.B., PALAKKAD, PIN- 678 001.

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R1 TO R3 BY ADV. SRI.PULIKOOL ABUBACKER, SC, KSEB

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SRI.K.S.ANIL, SC, KSEB SRI. ASOK M.CHERIYAN, SC, KSEB

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C)NO.30657/2010

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE APPOINTMENT ORDER ISSUED TO THE PETITIONER BY THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, K.S.E.B, PALAKKAD DATED 9/5/1996

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P2 COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 22/11/1996

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P3 COPY OF THE JUDGMENT DATED 10/10/2000 IN SESSION'S CASE NO.134/1997 OF THE ASSISTANT SESSIONS COURT, PALAKKAD DIVISION AT OTTAPPALAM

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P4 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 25/7/2002

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P5 COPY OF THE JUDGMENT DATED 12/5/2006 IN CRL.APPEAL NO.215/2000 OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.II, PALAKKAD

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P6 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 26/9/2006

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P7 COPY OF THE MEMO OF CHARGES ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 3/8/2007

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P8 COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT DATED 24/1/2008

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P9 COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 7/3/2008

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P10 COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26/6/2008

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P11 COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 14/12/2009

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P12 COPY OF THE JUDGMENT DATED 26/5/2010 IN WP(C)NO.16091/2010

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P13 COPY OF THE ORDER NO.EBVS.7/10/97/743 DATED 30/7/2010 ISSUED BY THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS:

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/TRUE COPY/

P.S.TO.JUDGE

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C.K.ABDUL REHIM, J.

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W.P.(C) No.30657 of 2010

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Dated this the 29^th day of November, 2011

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J U D G M E N T

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The petitioner is presently working as Lineman Gr:II in the 1^st respondent Board. He was originally appointed as Electricity Worker on advise from the Kerala Public Service Commission (PSC). While working as Electricity Worker the petitioner was placed under suspension through Ext.P2 order on the ground that he was arrested and remanded to judicial custody in a criminal case, registered for offences punishable under Section 498A and 304-B read with Section 34 of IPC. Allegation was that the wife of the petitioner's brother committed suicide on 21.10.1996 at her parental house due to torture and harassment met from her husband, his parents and brothers (including the petitioner herein) demanding more dowry, while she was residing at her matrimonial home. Facts alleged in a nut shell was that, on an earlier occasion she attempted suicide by consuming

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W.P.(C).30657/10

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poison, but based on a mediation settlement she was taken to the matrimonial home. But the torture and harassment continued and it became intolerable for her to live in the matrimonial home. The continued torture demanding more dowry and the intolerate mental harassments put in by the accused had compelled her to end her life.

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Trial court convicted the petitioner for offences punishable under Section 304-B and 498A and sentenced him to undergo rigorous imprisonment for two years, as per Ext.P3 judgment. On the basis of the conviction and sentence imposed, the petitioner was removed from service through Ext.P4 order of the 2^nd respondent. But the appellate court acquitted the petitioner finding that there was no overtacts attributed against the petitioner and the prosecution had failed to prove any guilt against the petitioner.

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On acquittal of the petitioner in the criminal case the 2^nd respondent had taken a decision to set aside the earlier order and to reinstate him in service. Exhibit P6 is

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the proceedings through which the petitioner was

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W.P.(C).30657/10

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reinstated. But the 2^nd respondent decided that departmental action should be held under the K.S.E.Board (Classification, Control and Appeal) Regulation, 1969, on the basis of the allegations which led to his removal. In Ext.P6 it is stated that the suspension period as well as the period between removal from service and reinstatement will be regularised only on finalisation of the departmental action. Thereafter the 3^rd respondent had issued a memo of charges to the petitioner alleging the following misbehaviour;

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(1) That you were involved in a criminal case-which was registered in Ottapalam Police Station as case No.367/96 u/s 304(b) r/w 34 of IPC.

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(2) That your involvement in such a case cannot be expected from a Board Employee.

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(3) That your involvement in such a case tarnished the image of KSE Board, as you were a Board employee then.

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Eventhough the petitioner submitted his statement of defence, the 3^rd respondent arrived at a conclusion that his involvement in the criminal case was not expected from a Board employee and it amounts to an act violating the manual of office procedure and other relevant rules. It is

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W.P.(C).30657/10

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also stated that the accusations against the petitioner had tarnished the image of the Board. Hence the 3^rd respondent decided to impose minor punishment of censuring with warning to the petitioner to abstain from any such cases in future. In Ext.P8 order issued in this regard, it is made clear that the period of suspension and dismissal will be treated as leave without allowance in all respect.

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Subsequently the 3^rd respondent issued Ext.P9 order modifying Ext.P8 to extent of changing the minor punishment of 'censure' to an order of 'warning on record'. It is stated therein that, the events led to suspension and dismissal warrants necessity for disciplinary action, and considering gravity of the matter it is ordered to warn the petitioner on record. The decision to treat the period of suspension and dismissal as leave without allowance was repeated. It was clarified that such period will not be counted for any service benefits.

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Aggrieved by Ext.P9, the petitioner submitted appeal before the 2^nd respondent. Since the appeal was not considered he had approached this court in W.P(C).

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W.P.(C).30657/10

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No.16091/2010. Through Ext.P12 judgment the 2^nd respondent was directed to consider the appeal and to take a decision. Through Ext.P13 the appeal was rejected declining the request of the petitioner to cancel the order treating the broken period as leave without allowance, relying on a decision of the hon'ble Supreme Court to the effect that awarding of back wages for the period when the employee has not worked may amount to rewarding the delinquent employee and punishing the employer for taking action for misconduct committed by the employee. In this writ petition the petitioner is challenging Ext.P13.

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In the counter affidavit it is contended that, the acquittal does not automatically give any right to the petitioner for reinstatement in service and it is left to decision of the competent authority as to whether disciplinary action need be taken against the delinquent employee. Further it is contended that, the employee is not entitled for full back wages on reinstatement into service on the basis of an acquittal in a criminal case and in such cases the principle of 'no work no pay' will apply as held by the

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honourable apex court in Ponnamma Vs. State of Kerala (1997 (1) KLT 720) . Contention of the Board is that service of the petitioner was terminated for his involvement in a criminal case, and hence the 1^st respondent Board cannot shoulder any liability, which happened for no mistake of its own. It was also contended that initiation of disciplinary action as well as the imposition of punishment of warning on record is perfectly sustainable. Hence, decision taken by the appellate authority in Ext.P13 does not suffer from any infirmity, is the contention.

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The prime question question to be considered is as to whether the order treating the period of suspension and dismissal as leave without allowance, is sustainable or not. Admittedly the suspension was based on arrest and remand of the petitioner to judicial custody in a criminal case. He was dismissed from service only on the basis of conviction in the criminal case. It is also not disputed that the petitioner was acquitted by the appellate court. Whether the disciplinary action initiated against the

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petitioner after his acquittal on the basis of the charges referred above was sustainable or not is the issue to be decided. Yet another question arises as to whether regularisation of the service by treating the broken period as leave without allowance, can be justified on the basis of the punishment imposed, in the departmental proceedings.

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Rules 56 and 57 of Part I of the Kerala Service Rules (KSR) is relevant in the matter. Rule 57 provides that on reinstatement, the authority concerned should take a decision in accordance with the circumstances of the case. It is mentioned that, full amount need be given only on the event of the officer being acquitted of the blame or if it is proved that the officer's liability arose from circumstances beyond his control. It is settled through various legal precedents that the words “acquitted of blame” means something more than mere acquittal and it is not an acquittal as contemplated under the Code of Criminal Procedure. But the acquittal should be a 'honourable acquittal'. In this regard it is to be noticed that, a provision akin to that of the second proviso to Rule 18, especially

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clause (b) therein of the Kerala Civil Services (Classification, Control and Appeal) Rules is absent in the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1969. Therefore a decision regarding adjustment of the pay and allowances of an employees for the period of detention or imprisonment, should have been arrived at in accordance with the circumstances in each case. The full amount become payable only if he is acquitted of the blame. In the case at hand, through Ext.P6 the 2^nd respondent had reinstated the petitioner after permitting departmental action to be initiated under the KSEB Employees (CC&A) Regulations. It was observed that the suspension period and the period between removal from service and reinstatement will be regularised on finalisation of the departmental action. Therefore it is evident that instead of taking a decision as contemplated under Rule 57 of Part I KSR, the 2^nd respondent directed the subordinate official to finalise the matter depending on the outcome of the departmental action.

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W.P.(C).30657/10

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Question arises as to whether the departmental

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action initiated on the basis of the charges mentioned, is sustainable or not. It is evident that the appellate court acquitted the petitioner on the basis of the following findings:

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“The overt acts attributed to the persons other than the husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offense relating to dowry death. Viewed in that perspective it can be seen that no overt acts in this regard have been proved against the 3^rd and 4^th accused who are brothers of the 5^th accused. (The petitioner herein was the 3^rd accused). Apart from a passing mention that a younger brother of the 5^th accused had also joined with other relations for harassing her demanding more ornaments and cash, no overt acts of harassment have been clearly attributed to the 3^rd and 4^th accused, brothers of the 5^th accused by the deceased in her aforestated letters. Hence I find that the prosecution has succeeded to prove the offences charged u/Ss.498A and 304-B r/w Section 34 of IPC only against the accused Nos.2 and 5.

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W.P.(C).30657/10

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The prosecution failed to prove any guilt under the aforesaid Sections of IPC against the accused Nos.3 and 4. Hence I find that the conviction recorded and the sentence imposed on accused Nos.3 and 4 are liable to be set aside.”

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When a person implicated as accused is acquitted by the competent criminal court and when it is an 'acquittal of the blame', can a disciplinary action be initiated on the basis of the same the set of allegations, is a matter which need consideration. Here the charges in Ext.P7 is not on the basis of the accusations in the criminal case, but on the basis of allegations that, implication of the petitioner in a criminal case is a misbehavior and it had tarnished image of the Board. It is settled law that after acquittal of a person involved in a criminal case, the department is not entitled to initiate disciplinary action on the same set of facts. The Hon'ble Supreme Court in G.M.Tank Vs. State of Gujarat and others (2006 (5) SCC 446) held that the distinction which is usually available between departmental and criminal proceedings, on the basis of approach and burden

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of proof, cannot be made applicable in a case where the facts and evidence in the departmental as well as the criminal case are one and the same and when there is no iota of difference. It is further held that, when there is an honourable acquittal of the employee, the same requires to be taken note of and in such case the departmental enquiry cannot be sustained. This court in Balakrishnan Vs. State Bank of Travancore (2011 (4) KLT SN 93 (C.No.104)) held that acquittal in a criminal case could not unsettle or invalidate the disciplinary proceedings which has become final. But acquittal in criminal appeal is sufficient to unsettle the departmental proceedings which were initiated on conviction by the trial court. It is held that, in case the disciplinary proceedings was initiated on the basis of conviction by the trial court, acquittal in the criminal case is sufficient to unsettle the disciplinary proceedings, because, by the acquittal the very foundation of the disciplinary action would stand collapsed.

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Analysed on the basis of dictum laid in the cases referred above, I am of the view that, the charges upon which the disciplinary action was initiated in this case is totally unsustainable. It is further noticed that, through Ext.P8 order the disciplinary action had culminated in imposing a minor punishment of 'censure'. But it is not discernible as to how the disciplinary authority could subsequently take a different view and modify the punishment. In Ext.P9 the authority had imposed punishment of 'warning on record' in lieu of the punishment of 'censure'. However, in both the orders the disciplinary authority had taken a decision to treat the period of suspension and dismissal as leave without allowance, and made it clear that it will not be counted for any service benefits. The appellate authority took the matter in a different angle and held that since the petitioner has not worked during the period in which he was kept under suspension and dismissal, he could not be paid back wages

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From the facts mentioned as above, it is evident that the authority had not decided the issue of

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regularisation of the broken period of service on the basis of acquittal in the criminal case. But the decision is taken on the basis of the departmental disciplinary action initiated. As held above, I am of the considered opinion that the disciplinary action initiated on the basis of Ext.P7 charge memo is totally illegal and unsustainable. Therefore I am of the view that the decision taken regarding treating the broken period as leave without allowance and denial of benefits for such period, needs reconsideration. A fresh decision in this regard need be taken as to whether the petitioner is entitled to pay and allowances and other service benefits during the period which he was kept under suspension and dismissal. The decision in this regard is to be considered on the basis of provisions contained in Rule 57 of Part I KSR, taking note of the settled legal precedents.

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Under the above mentioned circumstances the writ petition is allowed and Exts.P7, P8, P9 and P13, are hereby quashed as unsustainable. The 2^nd respondent is directed to take a fresh decision with respect to

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regularisation of the period of suspension and the period between removal from service and reinstatement. A decision with respect to payment of back wages and other service benefits shall also be taken based on acquittal in the criminal case, taking note of the principles underlying in Rule 57 of Part I KSR.

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The needful in this regard shall be done at the earliest possible, after affording an opportunity of hearing to the petitioner, at any rate within a period of two months from the date of receipt of a copy of this judgment.

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(Sd/-)

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C.K.ABDUL REHIM, JUDGE.

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okb

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True copy

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P.A to Judge

A.Lakshmanan v. Kseb

Case brief

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A.Lakshmanan v. Kseb

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