Allowed

K.Sasidharan v. Kseb

Kerala HC11 Jun 2014WP(C)/14906/2011

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging orders that treated the petitioner's suspension period as eligible leave. The Court held that since the petitioner was acquitted of blame, the suspension period must be treated as duty under Rule 57 Part I KSR 1959, entitling him to revised pension and consequential benefits.

What did the court decide?

Exhibits P8, P10, and P12 quashed. The second respondent directed to treat suspension period (16.9.1999 to 29.10.2005) as duty and give revised pension.

K.Sasidharan Vs Kseb — Pension and Retirement Benefits | Kerala HC (2014)

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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 A.V.RAMAKRISHNA PILLAI

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WEDNESDAY, THE 11TH DAY OF JUNE 2014/21ST JYAISHTA, 1936

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WP(C).No. 14906 of 2011 (K)

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PETITIONER:

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K.SASIDHARAN, YESSAR, ERULOOR, MITHIRMALA P.O., THIRUVANANTHAPURAM, (RETIRED ASSISTANT ENGINEER, K.S.E.B, 110 KV SUB STATION, KILIMANOOR, THIRUVANANTHAPURAM).

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BY ADVS.DR.K.P.SATHEESAN SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR

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RESPONDENTS:

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1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-4.

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2. THE CHIEF ENGINEER (H.R.M), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-4.

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3. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM (RURAL), KATTAKADA, PIN-695 572.

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R1 TO R3 BY ADV. SRI.K.S.ANIL, SC, KSEB

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.14906/2011 (K)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1: COPY OF THE ORDER ISSUED BY THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, NEDUMANGAD DATED 18/09/1999.

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EXT.P2: COPY OF THE JUDGMENT DATED 13/06/2006 IN CC NO.23/2002 OF THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THIRUVANANTHAPURAM.

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EXT.P3: COPY OF THE ORDER NO.EBVS/2/74/2001/1124 DATED 29/10/2005 ISSUED BY THE 2ND RESPONDENT.

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EXT.P4: COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS GIVEN TO THE PETITIONER BY THE 3RD RESPONDENT DATED 24/02/2007.

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EXT.P5: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER DATED 8/03/2007.

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EXT.P6: COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 10/04/2007.

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EXT.P7: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE ENQUIRY OFFICER DATED 17/12/2008.

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EXT.P8: COPY OF THE ORDER NO.GB2/DISC-CASES/448/05-06/668 DATED 20/08/2010 ISSUED BY THE 3RD RESPONDENT.

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EXT.P9: COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15/09/2010.

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EXT.P10: COPY OF THE ORDER NO.EBVS.(2)/9/74/2001/8 DATED 6/01/2011 ISSUED BY THE 2ND RESPONDENT.

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EXT.P11: COPY OF THE REVISION PETITION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 4/02/2011.

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EXT.P12: COPY OF THE ORDER NO.VIG/E.VII/GB2/2484/11/1048 DATED X3/05/2011 ISSUED BY THE FIRST RESPONDENT.

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RESPONDENT'S EXHIBITS: N I L

/TRUE COPY/

P.S.TO JUDGE

Kss

A.V.RAMAKRISHNA PILLAI, J

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W.P.(C) No.14906 of 2011

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Dated this the 11^th day of June, 2014

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JUDGMENT

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Ext.P8 order by which the period of suspension of the petitioner from service was treated as eligible leave as well as Ext.P10 order rejecting the appeal against Ext.P8 and Ext.P12 revisional orders confirming Ext.P10, are under challenge in this writ petition.

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The petitioner was an Assistant Engineer under the respondent Board who demitted his office on 31.12.2008 on superannuation. While working as Sub Engineer, he was placed under suspension with effect from 16.9.1999 on the allegation that a crime has been registered against him by the Vigilance and Anti Corruption Bureau.

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The allegation against the petitioner was that

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WPC No.14906/2011 2

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he demanded an amount of Rs.500/- as illegal gratification for providing a service connection to the de facto complainant. After a full fledged trial, the Enquiry Commissioner & Special Judge, Thiruvananthapuram acquitted the petitioner. Thereupon, he was reinstated in service on 29.10.2005. Thus, he was out of service from 16.9.1999 to 29.10.2005. Disciplinary proceedings initiated concomitantly by the board also ended in acquittal. However, the disciplinary authority treated the period of suspension of the petitioner as eligible leave instead of treating the period on duty for all purposes. Though the appeals and revisions were filed against the said order, the same were without success. It is with this background, the petitioner has come up before this Court.

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In the counter affidavit filed by the respondent board, they would contend that the acquittal of the petitioner was not an honourable acquittal as he was acquitted giving the benefit of

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WPC No.14906/2011 3

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doubt. Therefore, according to them, the request of the petitioner would not fall under 56(2) of the Kerala Service Rules for treating the period of suspension as duty. It was also pointed out that in identical cases, the Apex Court had declined to award back wages following the dictum of “No work. No pay”.

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It was also pointed out that the petitioner had received full subsistence allowance during the suspension period without doing any work. For this reason, they prayed for a dismissal of the writ petition.

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Arguments have been heard.

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The registration of criminal case, the

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consequential suspension as well as initiation of disciplinary proceedings which ended in an acquittal of the petitioner are not in dispute.

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It was argued by the learned counsel for the petitioner that the petitioner was acquitted after a full fledged trial. The disciplinary authority also

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WPC No.14906/2011 4

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found that the petitioner was not guilty after thorough enquiry. Therefore, according to the learned counsel for the petitioner, the period of suspension of the petitioner ought to have been treated as duty for all purposes. This factual aspect has not been considered by the authorities while passing the impugned orders; so submitted the learned counsel for the petitioners.

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The learned counsel for the respondents per contra would submit that though the petitioner was acquitted, it cannot be treated as an acquittal of blame as the acquittal was passed on the benefit of doubt.

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In support of the argument, the learned counsel for the respondent board invited my attention to a decision of this Court in Mohammed Easa Sahib v DIG of Police (1990 KHC 410). But the aforesaid case could be distinguished from the facts in this case. In the aforesaid case, the employee against whom a criminal case was

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WPC No.14906/2011 5

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pending was acquitted as the learned Sessions Judge found that there was a fight between two factions in the course of which they freely made use of weapons and both sides suffered injuries. It was not clear as to which of factions was the aggressor of the victim. The learned Sessions Judge was not able to find out as who was the culprit in the circumstances. Therefore he gave benefit of doubt to all those persons responsible for the faction. It

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was not as if the petitioner in that case was exculpated of all guilt. On the said premise, it was concluded by this Court that the acquittal, which was put forth in that case was not an acquittal of blame, but was more a case of acquittal on account of the inability of the court to really pinpoint who was responsible for the event in question.

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The present case stands on a different footing. Ext.P2 is the verdict entered into by the Enquiry Commissioner & Special Judge against the petitioner. In Ext.P2 case, there was recovery of

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WPC No.14906/2011 6

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certain currency notes from the drawer of the table of the petitioner. The petitioner, who was the accused, had the definite case that those currency notes were planted in the drawer of his table in his absence, PW5, who was the investigating officer, has admitted before the trial court that he has not made an investigation as to whether PW1 planted the currency notes in the drawer of the table of the accused in his absence. Therefore, it was found that the prosecution has not proved beyond doubt that the plea of the accused that PW1 planted the currency notes in the drawer of his table in his absence without his knowledge is false or that the accused demanded or accepted bribe.

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Apart from the testimony of PW1, there was no corroboration of piece of evidence and therefore, the case against the petitioner resulted in a clean acquittal. It cannot be said that it was not an acquittal of blame.

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More over, in the concomitant disciplinary

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WPC No.14906/2011 7

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proceedings also, the petitioner was acquitted of the charges levelled against him.

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Therefore, this Court is of the definite view that the case of the petitioner would come within the purview of Rule 57 Part I KSR 1959 which is applicable to the employees of the board. The said Rules reads as follows:

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“(An officer, who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours, or is under going imprisonment shall be deemed to be under suspension with effect from the date of commencement of the detention or imprisonment, as the case may be, and shall not be allowed to draw any pay and allowances during such period of suspension other than any subsistence allowance and other allowances that may be granted in accordance with Rule 55 until he is reinstated in service). An adjustment of his pay and allowances for such periods should thereafter be made according to the circumstances of the case the full amount being given only in the event of the officer being acquitted of blame or (if the proceedings taken against him were for his arrest for debt) of its being provided that the officer's liability arose from circumstances beyond his control”.

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In the result, this writ petition is allowed. Exts.P8, P10 and P12 are quashed.

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WPC No.14906/2011 8

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The second respondent is directed to treat the period of suspension of the petitioner from 16.9.1999 to 29.10.2005 as duty for all purposes and to give revised pension and other consequential benefits without any delay.

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Sd/-A.V.RAMAKRISHNA PILLAI

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JUDGE

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css/ true copy

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P.S.TO JUDGE

K.Sasidharan v. Kseb

Case brief

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K.Sasidharan v. Kseb

Case brief

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