Allowed

S.Aboobacker v. the G.C.D.A.

Kerala HC16 Mar 2016WP(C)/3260/2010

Case brief

AI extract

What is this about?

The High Court allowed the writ petition, holding that the petitioner was honorably acquitted in a criminal case and the disciplinary enquiry was flawed. The court directed the authority to treat the suspension period as duty, paying full pay and allowances, and set aside the lower order. Promotions were not directed due to the long delay and retirement.

What did the court decide?

Period suspended treated as duty for pay and pension; full pay and allowances directed to be paid with interest on default.

S.Aboobacker Vs the G.C.D.A. — Pension and Retirement Benefits | Kerala HC (2016)

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'CR'

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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 K.VINOD CHANDRAN

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WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937

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WP(C).No. 3260 of 2010 (F)

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PETITIONER(S):

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S.ABOOBACKER, VI/1186-H, OPP: PUNJAB NATIONAL BANK, STAR ROAD, KOCHI-2.

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BY ADV. SRI.A.A.MOHAMMED NAZIR

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RESPONDENT(S):

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THE GREATER COCHIN DEVELOPMENT AUTHORITY, KADAVANTHRA, KOCHI - 682 030 REPRESENTED BY ITS SECRETARY.

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R,R BY ADV. SRI.M.K.THANKAPPAN,SC,GCDA, R,R1 BY ADV. SRI.MILLU DANDAPANI R BY SRI.S.B.PREMACHANDRA PRABHU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 3260 of 2010 (F)

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APPENDIX

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PETITIONERS EXHIBITS:

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EXT.P1	COPY OF THE MEMO OF CHARGES DTED 23.10.02 ISSUED BY THE
	RESPONDENT.

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EXT.P2 COPY OF THE JUDGMENT IN C.C NO. 135/1983 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM

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EXT.P3 COPY OF THE ENQUIRY REPORT DATED 31.3.04 SUBMITTED BY THE ENQUIRY OFFICER TO GCDA

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EXT.P4 COPY OF THE JUDGMENT DATED 23.7.09 IN W.P.(C) NO.21962/07 OF THIS HON'BLE COURT

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EXT.P5	COPY OF REPRESENTATION DATED 19.9.09 SUBMITTED BY THE
	PETITIONER TO GCDA

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EXT.P6 COPY OF THE LETTER DATED 10.12.09 SENT BY THE SECRETARY GCDA TO THE PETITIONER.

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EXT.P7 COPY OF THE DECISION DATED 24.11.09 OF THE EXECUTIVE COMMITTEE OF GCDA.

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RESPONDENTS EXHIBITS:

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EXT.R1 COPY OF THE NOTE DATED 6.11.98 OF THE SUPERINTENDING ENGINEER OF THE RESPONDENT.

// TRUE COPY //

P.A TO JUDGE

'CR'

K. VINOD CHANDRAN, J.

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===================== W.P.(C) No.3260 of 2010 - F

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====================== Dated this the 16^th day of March, 2016

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J U D G M E N T

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The petitioner challenges Ext.P7 order passed by the respondent Authority. The short question to be considered is as to whether the petitioner is entitled to the pay and allowances between 24.02.1982 and 17.07.2003, when he was continued on suspension; allegedly illegally and whether he would also be entitled to the due promotions during the said period as if he had been continued regularly in employment under the respondent Authority.

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The facts indicate that the petitioner, who was

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working as an Assistant Grade I, was suspended on 24.02.1982 on allegation of having colluded with six others, one of whom

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W.P.(C) No.3260 of 2010 - F

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was the Chairman of the respondent Authority, in perpetrating an offence leading to loss, occasioned to the respondent. The allegation was that the petitioner; with the active connivance of six others illegally diverted 1720 MT of cement, purchased by the respondent Authority from Tamil Nadu Cement Corporation and supplied through SIDCO. A criminal case was registered against the petitioner and six others as C.C No.153 of 1983.

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The petitioner was the first accused in the case and the Chairman of the respondent Authority was the 6^th accused; the latter of whom, died during the course of the criminal proceedings. The petitioner was kept under suspension during the time, when the criminal case was pending and no departmental enquiry was also initiated against him. After about 20 years from the date of the alleged incident, by Ext.P1 memo of charges dated 23.10.2002, a disciplinary enquiry was initiated. The petitioner filed his explanation and approached this Court with W.P.(C) No.18064 of 2003. The writ petition was

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disposed of on 30.06.2003 and the petitioner was directed to be reinstated. Liberty was reserved to the respondent Authority to proceed with the enquiry. The petitioner was reinstated on 17.07.2003 and retired on 30.08.2003. Neither the disciplinary proceedings nor the criminal trial concluded prior to his retirement.

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After the petitioner's retirement, the disciplinary enquiry initiated was concluded with Ext.P3 report dated 31.03.2004. Despite a report having been prepared in an enquiry initiated prior to the retirement of the petitioner, the disciplinary Authority did nothing to conclude the proceedings by considering the report and passing an order; obviously for reason of the petitioner having retired by then. Subsequently the petitioner was also acquitted in the criminal case by Ext.P2 judgment of the trial Court on 25.05.2007. Even after that, the respondent authority did nothing to conclude the disciplinary proceedings or at least take proceedings for computing the loss

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said to have been caused to the respondent authority; as barely found in Ext.P3 report of the Enquiry Officer; that too without any substantiating evidence.

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The petitioner then approached this Court with W.P(C) No.21962 of 2007, claiming the entire pay and allowances and also the treatment of his suspension period as period spent on duty for all purposes including pay and allowances, due promotions and for reckoning pension. This Court having noticed the entire proceedings, found that for more than two decades, the petitioner was denied salary and allowances and also promotion to higher posts. The criminal proceedings having concluded with acquittal, this Court issued the following directions by Ext.P4 judgment, which are extracted here under:-

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1)The Authority shall, within four months from the date of receipt of a certified copy of this judgment, pass orders regularising the period from 24.02.1982 to 17.07.2003, namely, the period during which the petitioner was kept under suspension, after notice to and affording him an opportunity to state his case.

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2)The Authority shall also consider whether in view of the findings in Ext.P6 judgment, the petitioner is entitled to be promoted to higher posts with effect

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from the dates on which his juniors were promoted. 3)The entitlement of the petitioner for salary and allowances shall also be decided upon by the Authority simultaneously and the benefits, if any, shall be disbursed expeditiously.

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4)The Authority shall, after final orders are passed as directed above, take steps to fix the terminal benefits payable to the petitioner. This shall be done within one month from the date on which orders are passed as directed above. Payment of terminal benefits shall be made expeditiously thereafter.

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5)It will be open to the petitioner to raise all his claims before the Executive Committee of the Authority in the form a representation which he may submit along with a certified copy of this judgment. 6)If the petitioner is aggrieved by the decision taken by the Authority, it will be open to him to challenge the same in other appropriate proceedings.

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7)I make it clear that nothing said in this judgment will preclude the Authority from taking such steps as are permissible in law to recover the pecuniary loss if any, caused to it by the petitioner. The contentions of both parties as regards that aspect of the matter are kept open.

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Pursuant to Ext.P4 directions, Ext.P7 order was

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passed. Ext.P7 found that the petitioner had been acquitted only on benefit of doubt being extended to him and there was no honourable acquittal. The petitioner was found to be not entitled to any amounts during suspension period other than the subsistence allowance already paid. The petitioner was also

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found to be not entitled to any further promotions during the period. The period of suspension was reckoned as qualifying service for pension.

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The learned Counsel for the petitioner contends that the alleged incident leading to the criminal charge laid against the petitioner and others were ill motivated and malafide. The petitioner was illegally kept out of service for more than two decades. The Criminal Court had eventually concluded the trial, finding the petitioner not guilty of the offences. A reading of Ext.P2 judgment, according to the petitioner would indicate that the petitioner had been honourably acquitted for reason of the prosecution having failed to prove the charges beyond a reasonable doubt. The petitioner hence would be entitled to the entire pay and allowances due to the petitioner during the suspension period, as is permissible under Rule 56 B of Part I of Kerala Service Rules, is the forcefull argument.

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The learned Standing Counsel for the

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respondent Authority would, with equal vehemence, contend that the employer having exercised its discretion, the jurisdiction of this Court would be confined, insofar as examining, if there has been any procedural irregularities or whether the exercise of discretion was in any manner perverse. It is not proper for this Court to impose its own opinion; over the opinion expressed by the employer, especially when the employer has considered the issue and exercised discretion against the petitioner, insofar as declining the pay and allowances for the suspension period, but granting him the benefit of treatment of the period as qualifying service. The refusal to exercise discretion in allowing pay and allowances for the period is fully justified; considering the gravity of the offences alleged and the huge loss caused to the Authority; not to discount the dishonest conduct revealed. The entire period has been treated as duty for the purpose of grant of pension; reckoning such period as qualifying service, argues

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learned Standing Counsel.

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It is also specifically urged that Ext.P3 enquiry report

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would indicate that the petitioner had been found guilty of the misconduct alleged and also disclose the loss caused to the respondent Authority. The respondent Authority had not attempted to make any recovery, only since the laws of limitation would have worked against such a measure. With respect to the criminal proceedings having ended in an acquittal and the discretion to be exercised by the Authority, reliance was placed on the decisions of this Court reported in Vikraman Pillai v. State of Kerala [2003(2) KLT 397 , Mohammed Easa Sahib v. D.I.G of Police [1990(2) KLT 462] and K.V Thomas v. State of

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Kerala and others [ 2000(1) KLJ 447] and the binding precedent of the Hon'ble Supreme Court in Ponnamma v. State

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of Kerala [1997(1) KLT 720 (SC) . The learned Counsel would also contend that since the petitioner has an alternate remedy under the Kerala Civil Services (Classification, Control and

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Appeal) Rules, 1960, specifically Rule 24, this Court should not invoke the jurisdiction under Article 226 of the Constitution of India.

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With respect to the contention raised of alternate remedy, at the out set, it has to be noticed that the writ petition itself was filed in the year 2010 and was admitted. The writ petition having remained in this Court for the last six years, it would not be proper for this Court to relegate the petitioner to the appellate remedy, especially considering the fact that the petitioner is a senior citizen of 67 years age. The contention with respect to the discretion having been exercised properly has to be considered with reference to Ext.P7 order. Even though this Court cannot super impose its opinion over that of the Authority, it would still be permissible to examine whether the discretion was exercised properly and whether the decision is one which any reasonable man would normally come to, on the given set of facts and circumstances.

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The next contention is with respect to the

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disciplinary enquiry conducted; the report of which is produced as Ext.P3. A reading of the report shows that no witnesses were examined. Though the petitioner was participated in the proceedings, initially the petitioner was confronted with documents,only when the same was produced by the Presenting Officer. The petitioner had objected to the said procedure adopted and had also contended that, 20 years after the alleged incident, he was incapacitated in proffering a proper defence, since he did not have the material nor access to the documents in the office of the respondent, to refute the allegations. The petitioner also pointed out that the criminal case was still pending and he would be prejudiced insofar as continuing with the disciplinary proceedings. The Enquiry Officer all the same continued with the enquiry proceedings.

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The documents produced at the enquiry were

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also the copies of those produced in the Court in the criminal

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case. They were merely produced by the Presenting Officer without proving it by examining witnesses. The petitioner did not also have any opportunity to confront the documents to the persons, who should have normally proved the said documents. Hence, there was no cross-examination to enable the petitioner to challenge the documents produced in the Enquiry. The enquiry report also merely concluded that “from the foregoing evidences and the documents produced by the presenting officer it can be presumed that the delinquent officer had some involvement in the illegal transaction of cement from Tamil Nadu Cement Corporation, but the extent of his involvement can be proved only by further evidences”(sic). Hence there is no conclusive finding arrived at in the enquiry.

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It is trite that the evidence required in a domestic

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enquiry is not of the same nature as that required in a criminal trial. While in a criminal trial the offences have to be proved beyond reasonable doubt, in a disciplinary enquiry, a

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preponderance of probability would suffice. The petitioner hence was not found guilty of the offences in the enquiry conducted by the respondent authority nor was any loss occasioned to the respondent; computed in Ext.P3 report. The enquiry report having been submitted to the disciplinary authority, the disciplinary authority has not cared to conclude the same after supplying the report to the petitioner, calling for objections and deciding on the findings of the enquiry officer. In a disciplinary enquiry, the ultimate authority to find the guilt on the delinquent employee is the disciplinary authority and not the Enquiry Officer. The Enquiry Officer is a person appointed for convenience and to enable an independent proceeding, wherein the employer and the delinquent employee would be able to place all evidence before the Enquiry Officer, for him to arrive at a finding. It cannot also be disputed that the ultimate say is of the disciplinary authority since even if the Enquiry Officer finds the delinquent employee to be not guilty of the offences alleged,

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the disciplinary authority could, on the basis of the evidence adduced at the enquiry, enter an adverse finding against the delinquent employee.

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In the present case what assumes significance is that, the enquiry report itself was in the year 2004 after the retirement of the petitioner. The disciplinary authority could not have passed any order against the retired employee; especially since the misconduct alleged was of more than two decades prior to retirement. There can be no finding entered by this Court or by the Committee which considered the representation of the petitioner, as directed in Ext.P4 judgment, as to the guilt of the delinquent employee or with respect to the loss caused to the employer. The findings in the enquiry report are not conclusive and by itself cannot cause distress to the petitioner, the delinquent employee. The enquiry report, hence is of no consequence.

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As to how the suspension period is to be treated, it is only proper that the law as laid down by the precedents referred to herein above is looked into. Mohammed Easa Sahib (supra) was a case in which the Government employee was suspended by reason of his arrest and remand in a criminal case. The criminal case was occasioned by reason of a clash between two factions, which resulted in the death of one person. The Sessions Court acquitted the accused of the charges, since there was no evidence as to which of the factions was the aggressor. What was proved, was only that, there was a clash between two factions and one person died. Finding that it was difficult to pin the offence on the accused, they were all acquitted of the charges. The learned Single Judge having considered the decision of the various High Courts, was of the view that an acquittal on the ground of benefit of doubt, leaves the issue of how the suspension period should be considered to the concerned authority; who has to consider, whether there has

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been an acquittal of blame. It was found that therein, the petitioner was not fully exculpated of guilt and hence the decision not to grant full pay and allowance for the period of suspension was proper exercise of discretion by the concerned authority. The suspension also, was by reason of the detention by the police and the subject government employee was found to have been involved in the clash which caused the death of one person.

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In Vikraman Pillai (supra) the accused was let

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off on the ground that the prosecution could not establish the guilt of the accused. There also the suspension was by reason of detention by the Police on registration of a crime. The learned Single Judge relied on Ponnamma (supra), which held that even when there was a subsequent acquittal; of the charges framed, when the employee was kept under suspension on the ground of the involvement in a criminal charge, then the authority was perfectly within its right to deny back wages.

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Ponnamma (supra) was also a case, in which the Officer was kept under suspension on account of the detention for 48 hours and continued to remain under suspension pending the trial of the criminal case.

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K.V. Thomas (supra) was a case, in which a Head Constable was imposed with punishment of compulsory retirement on charges framed, which stood proved in disciplinary proceedings. The appeal before the departmental authorities failed and in an original petition, this Court set aside the punishment and directed reconsideration. The Government after reconsideration reduced the punishment to barring of two increments with cumulative effect. On reinstatement in service and regularisation, as directed by this Court, the Government treated the period, the employee was kept out of service as duty for the limited purpose for pension and pay and allowances were limited to the subsistence allowance drawn by the employee. Rule 56 (1) of Part I K.S.R was found to give ample power to the

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Government to decide so.

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The present case would not fall under Rule 56 since that Rule specifically deals with an Officer, who has been dismissed, removed or compulsorily retired and who is subsequently reinstated in an appeal or review. Rule 56 A also deals with the dismissal, removal or compulsory retirement of an officer, which has been set aside by a Court of law. Rule 57, which was considered by this Court in Mohammed Easa Sahib and Vikraman Pillai (supra) would also not be applicable, since there was no detention of the petitioner, on the basis of the criminal charges or otherwise. In the cited decisions the suspension itself was as a result of the detention pursuant to a criminal case. Herein the suspension was not account of any such detention but on specific allegations raised by the disciplinary authority itself. The registration of the criminal case, on the very same allegations, followed the suspension.

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Herein, an allegation was levelled against the

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petitioner on which the petitioner was suspended and a criminal case was instituted. The petitioner was issued with a memo of charges, which the authority by its own laxity, failed to bring to its logical conclusion for a long period of almost 30 years. The position remains unaltered even today. When eventually, the petitioner was reinstated and proceedings were taken, an eye wash of an enquiry was conducted, without any of the principles of natural justice being complied with. The enquiry report also, did not categorically find the guilt on the petitioner. The report was submitted after the delinquent employee retired. In such circumstance, what would be applicable to the petitioner's case is Rule 56 B, which speaks off an officer, who has been suspended and is reinstated.

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Rule 56 B confers the power to make a specific

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order as to the pay and allowances to be paid to the Officer, for the period of suspension and which has to be under sub-Rule (3)

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and (5) of Rule 56 B. Sub-Rule (2) operates when the delinquent employee dies before the conclusion of proceedings, in which event his family would be entitled to full pay and allowances. Sub-Rule (3) speaks of a circumstance in which the suspension is found to be wholly unjustified, in which event the Officer would be entitled to full pay and allowances. In cases other than those falling under sub-Rule (2) and (3); the Officer is to be paid such amounts of the pay and allowances to which he would have been entitled had he not been suspended by the competent authority as the Competent Authority determines subject to sub-rules (8) & (9). Sub-rule (7) confers on the Competent Authority the discretion to decide the suspension period as duty for any specified purpose. Sub-rule (8) makes the payment of allowances subject to the conditions under which the allowances are admissible and sub-rule (9) ensures that the pay and allowances so granted do not fall below the subsistence allowance already paid.

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In the present case, the petitioner was

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suspended w.e.f. 24.02.1982 with respect to an allegation of diversion of cement purchased by the respondent Authority. The offences alleged were under the Indian Penal Code, the Essential Commodities Act 1955 and the Kerala Cement Distribution and Licensing Regulation Act, 1975. The disciplinary proceedings were initiated by a memo of charges dated 23.10.2002 produced as Ext.P1, after more than twenty years. The petitioner immediately replied by an explanation dated 27.01.2003. The petitioner had filed a writ petition numbered as W.P.(C) No.18064 of 2003, seeking reinstatement in service, subsequent to which the petitioner was heard by the Secretary of the G.C.D.A and issued with notice dated 13.06.2003, informing him the decision of the Executive Committee to dismiss the petitioner from service. This was without any disciplinary enquiry being conducted. The said writ petition was disposed of directing the petitioner to be reinstated. The petitioner was

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reinstated in service on 17.07.2003 and he retired on 13.08.2003.

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It is to be noticed that for more than 20 years,

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there was no enquiry conducted against the petitioner and he was kept under suspension. Even when the enquiry was initiated, the same was not conducted in the proper manner and was carried out in gross violation of principles of natural justice. Before the enquiry report was filed, the petitioner had retired from the service. The enquiry report was inconclusive insofar as neither pinning the guilt on the petitioner nor quantifying any loss caused. The criminal case also ended in acquittal after the petitioner retired from service.

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The petitioner was kept away from employment for long years on the basis of the order of suspension, without even a charge sheet being issued. The enquiry proceedings,were initiated after twenty years, with a charge sheet, levelling charges based on incidents which took place long back. Eventually the petitioner was reinstated and he retired from service. Neither

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the disciplinary enquiry nor the criminal case found the petitioner guilty of the offences. The Criminal Court acquitted the petitioner of all the charges. In such circumstance,the only conclusion is that the suspension was wholly unjustified.

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A reading of Ext.P7 would indicate that, the Committee, which considered the case of the petitioner was under the misapprehension that the petitioner was acquitted in the criminal case, granting him benefit of doubt. It is also seen stated in Ext.P7 that the petitioner was not completely exonerated by the Court and hence the Committee feels that his suspension was not wholly unjustifiable.

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The concepts of proof beyond reasonable doubt

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and acquittal, conceding benefit of doubt, are clearly distinguishable. The former arises specifically from Section 3 of the Indian Evidence Act, 1872, while the concept of benefit of doubt has been explained succinctly by the Hon'ble Supreme Court in paragraph 18 of M.K. Kulkarni Vs. State Of

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Maharashtra (AIR 1963 SC 200) , which is extracted hereunder:

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“There is nother point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No. 1 rests on circumstantial evidence. The main charge of conspiracy under section 120-B is sought to be established by the alleged conduct of the conspirators and so far as accused No. 1 is concerned, that rests on circumstantial evidence alone. It is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused persons' conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If, the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Courts has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved; the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the

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accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated.”

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The Hon'ble Supreme Court in Commissioner Of

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Police Vs. Mehar Singh (2013) 7 SCC 685 considered the policy

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laid down by the Delhi Police, conferring a discretion on the Screening Committee to decide upon the advisability of appointing persons who are involved in criminal cases; though acquitted. Therein the issue of rejection of two candidates came up; both of whom had disclosed the fact of their involvement in a criminal case, from which they were acquitted. One of them was involved in a case of assault on a bus-conductor and was acquitted on a compromise entered into with the complainant. The other was accused of attempt to murder; the trial of which showed the witnesses to have turned hostile and the accused acquitted on benefit of doubt. The rejection of their candidature and the policy laid down, which resulted in the rejection, were both upheld. The contention that the Screening Committee had

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over-reached the judgment of the criminal court was found to be not sustainable. The policy which kept away persons involved in grave misdemeanors, from employment, especially in a disciplined force, concerned with law and order, was found to be a sound one; especially when the the acquittal in the criminal case was on technical grounds, witnesses turning hostile or when there was a serious flaw in the conduct of the prosecution. The principles governing the co-relation between a disciplinary enquiry and a criminal prosecution on identical facts ; though not strictly applicable, was held to be relevant in considering the policy so devised, in rejecting the candidature of those involved in criminal cases.

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In holding that a consideration on that aspect has to be carried out by looking into the judgment of the criminal court and the manner in which the acquittal has been ordered; whether it be a “honorable” one or not, the Hon'ble Supreme Court relied on (2013) 1 SCC 598 I.G. Of Police Vs.

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Samuthiram which held so:

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24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI v. Bhopal Singh Pancha l⁶ . In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted”. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

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xxx xxx xxx

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26. As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses

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since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.

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27 . We have also come across cases where the service rules provide that on registration of a criminal case, an employee can be kept under suspension and on acquittal by the criminal court, he be reinstated. In such cases, the reinstatement is automatic. There may be cases where the service rules provide that in spite of domestic enquiry, if the criminal court acquits an employee honourably, he could be reinstated. In other words, the issue whether an employee has to be reinstated in service or not depends upon the question whether the service rules contain any such provision for reinstatement and not as a matter of right. Such provisions are absent in the Tamil Nadu Service Rules.

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In the instant case the enquiry was not conducted

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properly, it did not reach its logical conclusion and the report was submitted beyond time. It is also an admitted position that the service rules confer a discretion on the employer to consider as to how the suspension period has to be treated. In that circumstance what is relevant is the manner in which the criminal trial proceeded and the basis on which the petitioner was

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acquitted. Ext.P2 judgment did not acquit the petitioner or any other accused by granting benefit of doubt. The misapprehension, as disclosed in Ext.P7; was occasioned only for reason of the Court having held that the prosecution failed to prove the offences alleged against the accused beyond the shadow of reasonable doubt, which is the rule in any criminal prosecution. If the acquittal was by granting benefit of doubt, then necessarily the same would have been specified by the Court.

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The Criminal Court on the basis of the offences alleged laid out the points for determination as eleven in number of which, the first nine alone are relevant for consideration. The first charge was with respect to the accused having committed a criminal conspiracy which was answered by the trial Court as “there is nothing in the prosecution evidence to hold that the accused had entered into a criminal conspiracy for committing the offence alleged against them”(sic). The other

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charges were with respect to the offence of criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery of documents with intent to transfer valuable property and security and using such forged document as genuine. Offences were also alleged for dealing with and selling cement in violation of the Kerala Cement Distribution and Licensing Regulations 1975, and the Essential Commodities Act, 1955. The prosecution examined as many as 79 witnesses and marked P1 to P120 documents. The Court found that there was nothing to connect the accused with the alleged forgery of documents. The cement supplied was found to have been properly acknowledged by the G.C.D.A. It was categorically found that the allegation of misappropriation and diversion of cement was not proved. The transporting contractor, drivers and owners of the lorries and the persons alleged to have purchased the cement turned hostile. But it was not on account of that the accused were acquitted. Even before referring to the said witnesses the

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Court found that the prosecution had not adduced any evidence to prove the conspiracy alleged and there was no evidence to

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prove the forgery of documents and also that the entire cement supplied was acknowledged by the G.C.D.A. After having dealt with the entire evidence, the specific finding in Ext.P2 was as

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follows :-

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“So, on going through the above evidences adduced by the prosecution, it could be seen that absolutely there is nothing to show that the accused has received any cement from Sidco or T.N.C.C, or any cement transported from Sidco or T.N.C.C to G.C.D.A was reached in the hands of the accused on the way and they had misappropriated or sold it in the open market as alleged by the prosecution. “

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It cannot be said that the petitioner was not honourably acquitted. The petitioner along with other accused were acquitted for reason of there being no evidence to find the charges against the accused having been proved. It is also an admitted fact that Ext.P2 has attained finality and the State has not filed an appeal from the same. Here it is pertinent to notice that the respondent Authority is one created under a Statute and

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wholly controlled by the State.

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The consideration to be made by the Executive Committee is confined insofar as the petitioners entitlement to treatment of the suspension period as period spent on duty for all purposes including the pay and allowances as also the promotions due. The Executive Committee, which considered the representation made by the petitioner, had completely misdirected itself in finding that the petitioner was not fully exonerated and cannot be said to be honourably acquitted. In such circumstance, Ext.P7 is to be set aside.

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There is no reason why the issue be sent back for consideration, especially noticing the long passage of time. The petitioner was suspended on 24.02.1982 and no proceedings were initiated departmentally for 20 years. When eventually the proceedings were initiated, the same was not concluded. There is absolute lethargy on the part of the authority in carrying out the proceedings, especially since the disciplinary proceedings

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could have been initiated and continued, without reference to the criminal proceedings or even when the delinquent employee stood acquitted in the criminal proceedings. It is also admitted that the respondent took no steps to recover the alleged loss occassioned to itself; which could have been done independent of the criminal case and the disciplinary proceeding. This Court in that context, is of the opinion that the entire period of suspension has to be treated as duty and the petitioner paid the full pay and allowances due to him as Assistant Grade I from 24.02.1982 to 17.07.2003. The request for consideration of promotion cannot be directed since it could have been made only on consideration of the suitability of the petitioner if he was in service.

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There shall be a direction to compute the entire pay and allowances and disburse the same to the petitioner, after deducting the subsistence allowance paid, within a period of four months from the date of receipt of the certified copy of

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this judgment, failing which the respondent authority would be liable to pay interest at the rate of 6% from the date of the amounts due for each month and the respondent authority would also be entitled to fix the liability on any officer who caused such default.

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The writ petition would stand allowed. No costs.

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Sd/-

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K. VINOD CHANDRAN,

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JUDGE

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SB/jjj/17/03/2016

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// true copy //