E.U. Saviar vs State Of Kerala And Ors

The petitioner says that while he was working as the Headmaster of the Government L.P.School, Kottacherry, he was placed under suspension on

the basis of certain allegations made against him by the parents of a student. He says that he was, however, honourably acquitted, through Ext.P8

judgment, by the Court of the Judicial First Class Magistrate â€" I, Hosdurg; but that when he approached the competent Educational Authorities for

benefits during the period when he was under suspension, it was denied to him saying that he has not been acquitted honourably. The petitioner,

therefore, impugns Exts.P13 to P16, which excludes the period of 635 days - when he spend on suspension - as duty; and prays that the respondents

be directed to issue appropriate orders reckoning this period as duty for all purposes.

In response to the afore submissions of Sri.M.Sasindran, the learned counsel for the petitioner, the learned Senior Government Pleader,

Sri.P.M.Manoj, submitted that a counter affidavit has been filed on record, wherein, the following has been stated in paragraphs 13 to 16.

“13. It is submitted that Exhibits P12, P13, P14 orders are legal and sustainable. The LWA applied for regularizing the suspension period can be

granted only as per rule 88 part I KSR.

It is submitted that the Honourable court in its judgment itself clearly stated that the petitioner was acquitted giving the benefits of doubt as the

evidence produced by the prosecution is not sufficient to prove the averments. Hence the petitioner cannot be considered as fully exonerated from

charges. The PW1 to III having declared as hostile is also a reason for the court to arrive at such a conclusion.

It is submitted that on scrutiny of the judgment it can be seen that the petitioner is not fully exonerated of the charges but let off granting the

benefit of doubt in the absence of proven evidence and at the instance the prosecution witnesses disowned their statements. So the petitioner cannot

be considered as fully exonerated of the charges. As he is not exonerated of the charges the suspension period cannot be treated as duty. Now the

said period is treated as leave on the written application submitted by the petitioner. The litmus test prescribed in the case law is followed in the instant

case also.

It is submitted that the petitioner was acquitted of charges by the court of law only on the ground that the adduced evidences were not established

by the prosecution and the prosecution witness disowned their earlier statements. The court had granted the benefits of doubt and acquitted him. This

does not mean that he was fully exonerated from the charges. The departmental action against the petitioner is guided by the service rules. The

petitioner has no right to claim to treat his suspension period as duty in the light of the fact that he was acquitted by the court according the benefit of

doubt for want of established evidence. Hence the decision to treat the period of suspension as leave is legal and justifiable.â€​

He concluded his submissions by saying that since the judgment of the Criminal Court records that the petitioner was acquitted solely on the basis of

benefit of doubt, he is not entitled to have his period of suspension reckoned as duty, under the provisions of Rule 57 Part I of the KSR.

The submissions of the learned Government Pleader as afore make it indubitable that Exts.P13 to P15 have been issued only because the

Educational Authorities are under the impression that the petitioner has not been honourably acquitted by the competent Magistrate's Court. I,

therefore, have examined Ext.P8 judgment of the said Court very closely. The judgment, after analysing the evidence available on record, records

thus:

“11. Thus on a consideration of the evidence on records it can be seen that the material witnesses examined on the side of the prosecution namely

PW1 to PW3, were turned against the prosecution. They have no case that accused have committed unnatural sex on CW2. It is true that in Ext.P1

the name of the accused is mentioned. But PW1 who has given the Ext.P1 statement has disowned the same. His definite version is that he has not

stated to the police that accused has committed unnatural sex on his daughter namely CW2. Under such circumstances, in the absence of any

corroborative evidence to establish the averment in Ext.P1 it is not possible to reach in a finding against the accused. As PW1 who has given Ext.P1

statement, has disowned the averment in the statement, It is the burden of the prosecution to prove the averments by producing cogent evidence.

Prosecution has not made any attempt for the same. Under such circumstances, I am of the view that accused is entitled to get the benefit of doubt in

this case. Therefore I find point No.1 in favour of the accused and against the prosecution.

Point No.2 In view of the above finding this point does not arise for consideration.

In the result, I find accused is not guilty of the offence punishable u/s 377 IPC. Accused is hereby acquitted u/s 248(1) Cr.P.C. His bail bond

stands cancelled and he is get at liberty forthwith.â€​

Presumably, the Educational Authorities have entered into the conclusion that the petitioner has not been acquitted honourably, but only on the basis

of benefit of doubt because the Criminal Court passingly has used these words in the last line of paragraph 11 extracted above. However, a full

reading of the judgment make it apodictic that it has been found affirmatively that there is absolutely no evidence to establish the guilt against the

petitioner and therefore, that he is deserving of being acquitted of all charges and resultantly of all blame. When the findings of the Criminal Court are

to such effect, I am afraid that the respondents could not have interpreted it to assert that that petitioner was not acquitted honourably and that he was

only given a benefit of doubt. In fact, the judgment unequivocally affirms that there is absolutely no evidence to link the petitioner to the alleged

incident or to even prove that such an incident ever took place. If this is not honourable acquittal, then there can be no other instance of such.

That apart, as has been declared by this Court in Santhosh Kumar v. State of Kerala [ILR 2007 (3) Ker.101] what is relevant, from the touchstone

of Rule 57 of Part I of the Kerala Service Rules is if the petitioner had been exonerated of all blame and since this is indubitable from the judgment of

the Criminal Court, I cannot find favour with the orders inpugned herein.

In the afore circumstances, I am certain that Exts.P13 to P16 cannot obtain approval in law and that the competent Educational Authorities must

reconsider the matter in view of my observations above.

In the result, I set aside Exts.P13 to P16 and direct the competent Secretary of the Government of Kerala to issue appropriate orders adverting to

Ext.P8 judgment and also to the provisions of Rule 57 Part I of the KSR and after affording an opportunity of being heard to the petitioner â€" either

physically or through video conferencing â€" leading to an appropriate decision thereon, as expeditiously as is possible, but not later than one month

from the date of receipt of a copy of this judgment.