Ramachandran Pillai vs Kerala State Electricity Board

Bhaskaran, J.—The facts are not in dispute. The Petitioner, who was a Junior Engineer in the Electrical section, Narakkal, under the Kerala State Electricity Board (for short K.S.E.B.) was placed under suspension as per order No. A.V. 28721/66, dated 6th January 1967 in connection with Crime No. 7/66 u/s 5(1)(a) and (d) read with Section 5(2) of the Prevention of Corruption Act and u/s 161 of the I.P.C., registered by the X-branch Vigilance Division, Emakulam against him. Subsequently the Petitioner was convicted in C.C. 11/67 on the file of the Special Judge, Trivandrum. He was, therefore, dismissed from the Board''s service with effect from 15th May 1970. In the appeal preferred by him before the High Court, the conviction was set aside on the ground that there was no sanction for his prosecution and he was reinstated in service as per Order No. Law 111-6809/70, dated 19th September 1970. Though he was thus reinstated he continued to be under suspension.

Prosecution proceedings were thereafter started afresh rectifying the mistake in regard to the non-obtaining of sanction pointed out by the High Court in its judgment in Criminal Appeal 119/70. Subsequently, his suspension was revoked and he was reinstated in service without prejudice to the prosecution proceedings pending finalisation. In C.C. 16/72 on the file of the Special Judge, Trichur, the Petitioner was acquitted holding that the prosecution did not prove the case beyond doubt. It was also held in that judgment that the prosecution has failed to prove beyond reasonable doubt that the accused has accepted Rs. 25 as illegal gratification. In appeal it was held by this Court that the Special Judge was right in holding that the prosecution did not prove its case beyond doubt.

Ext. P-1 is the notice issued to the Petitioner to show cause why the periods spent by him under suspension should not be treated as eligible leave. Ext. P-2 dated 8th August 1977 is the reply sent by the Petitioner to Ext. P-1. Ext. P-3 is the copy of the Order No. Vig. 11-1227/75, dated 16th May 1978 passed by the Chairman, K.S.E.B.--Respondent. It is aggrieved by the decision of the Chairman that this O.P. has been filed.

In the counter-affidavit filed on behalf of the Respondent, the stand taken is that the Petitioner not having been honourably acquitted, it is open to the Respondent to treat his case as falling under Rule 56(2) of Part I of Kerala Service Rules (for short the Rules).

Rule 54 of the Rules lays down that the pay and allowances of an officer who is dismissed or removed from service cease from the date of such dismissal or removal. Rule 55 of the Rules provides that an officer under suspension is entitled to the payments mentioned in the various Clauses thereunder. Rule 55A provides that,

notwithstanding anything contained in Rules 55, where an officer is placed under suspension for participation in a strike or for committing any act during the period of such strike he shall not be eligible for any subsistence allowance for the period of such suspension.

Rule 56 provides:

(1) When an officer who has been dismissed, removed, retired compulsorily or suspended, is reinstated, or would have been reinstated but for his retirement on superannuation while under suspension or when an officer who has been suspended has retired from superannuation before the conclusion of the disciplinary service on proceeding, initiated against him, the authority competent to order the reinstatement or the authority who initiated the disciplinary proceedings shall, after orders have been passed on the disciplinary proceedings consider and make a specific order--

(a) regarding the pay and allowance to be paid to the officer for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation, as the case may be; and

(b) whether or not the said period shall be treated as a period spent on duty.

Sub-rule (2) of Rule 56 with which we are more concerned reads:

(2) Where such competent authority holds that the officer has been fully exonerated, or in the case of suspension, that it was wholly unjustified the officer shall be given the full pay to which he would have been entitled had he not been dismissed, removed, compulsorily retired or suspended, as the case may be, together with any allowances of which he was in receipt prior to his dismissal, removal or suspension.

Rule 57 reads as follows:

An officer who is detained in custody, whether on a criminal charge, or otherwise, or a period exceeding forty-eight hours, or is undergoing 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.

Rule 58 is to the following effect:

An officer against whom a criminal charge or a proceeding for arrest for debt is pending in a court of law should also be placed under suspension by the issue of specific orders to this effect during periods when he is not actually detained in custody or imprisoned (e.g., whilst released on bail) if the charge made or proceeding taken against him is connected with his position as an officer or is likely to embarrass him in the discharge of his duties as such or involves moral turpitude unless there are exceptional reasons for not adopting this course. In regard to his pay and allowances the provisions of the rules above shall apply.

In the impugned order Ext. P-3 the view taken by the Respondent is that the instant case will attract the provisions under Rule 56, Part I, K.S.R., and has to be regularised accordingly. The view expressed was that the suspension of the Petitioner was wholly justified inasmuch as his acquittal in the criminal case was on the ground that the prosecution did not prove its case beyond doubt. So the conclusion was that the period of suspension in respect of the Petitioner from 10th January 1967 to 31st May 1971 would be regularised as eligible leave.

Counsel for the Petitioner submitted that there are two separate stages with which we are concerned m this O.P., (1) the period during which the Petitioner was under suspension from 10th January 1967 to 15th May 1970, and (2) the period during which the Petitioner having been dismissed from service was actually out of service, i.e. from 15th May 1970 to 31st May 1971, when he was actually reinstated in service. According to him, even assuming without conceding that the period under which the Petitioner was actually kept under suspension could be treated as period of eligible leave, as far as the period during which the Petitioner was out of service, it has to be treated as in actual service, and the Petitioner should be given all the benefits of the service during that period.

Prima facie, this is not a case falling under Rule 56 inasmuch as the suspension or dismissal from service before his final reinstatement in service was not pending disciplinary proceedings initiated against him. As a matter of fact Rule 57 is not directly attracted in the case of the Petitioner inasmuch as it was not a case of the Petitioner having been deemed to be under suspension following his detention in jail. On the facts it would appear that this case would fall-squarely under Rule 58 inasmuch as it was pending criminal prosecution against him, though he was not actually under detention or arrest, that by a specific order the Petitioner was kept under suspension.

The further question is as to how the period during which the Petitioner was out of service or was under suspension has to be treated; in other words, whether it is he provisions contained in Rule 56 or in Rule 57 which would govern the case of the Petitioner. The Counsel for the Respondent has contended that by a process of elimination it could be seen that Rule 57 also should be eliminated as not applicable to the case of the Petitioner, inasmuch as the suspension is not deemed suspension and there was also no detention or arrest so far as the Petitioner was concerned. Therefore, the argument is that when Rule 58 stated that, "in regard to his pay and allowances the provisions of the Rules above shall apply," if Rule 57 would not apply the only other rule which possibly could be attracted would be Rule 56. Counsel for the Petitioner would, on the other hand, start from the reverse order. He would argue that Rule 56 would not apply to the facts of the case inasmuch as admittedly the suspension and dismissal from service were not the result of the disciplinary proceedings initiated against the Petitioner. There appears to be a little vagueness about the provisions contained in Rule 58. All the same the endeavour of the court has to be to find out what exactly is meant by the framers of the rule in regard to the application of the last sentence in Rule 58, "in regard to his pay and allowances the provisions of the Rules above shall apply".

Relevance of Rule 57 so far as the Petitioner is concerned could be found in his reinstatement following acquittal. To that extent, I think Rule 57 will be more properly applicable to the case of the Petitioner than Rule 58, which by no stretch of imagination appears to have application inasmuch as admittedly there was no disciplinary proceedings against the Petitioner and it was not pending such disciplinary proceedings the Petitioner was placed under suspension and dismissed for a particular period mentioned. Then the question is why the words "provisions of the Rules" have been used in Rule 58 without specifying that it is the provisions of Rule 57 that would apply to the cases which are governed by Rule 58. Presumably, apart from Rules 56 and 57, in a case governed by Rule 58, Rule 55 and 55A also may be applicable. That probably explains the reason why the words "provisions of the rules above shall apply" to the cases of the persons governed by Rule 58 so far as the pay and allowances are concerned. I am, therefore, of the Opinion that Rule 57, not Rule 56, would apply to the case of the Petitioner who is squarely governed by Rule 58.

The further question that was argued at considerable length before me is whether the Respondent has discretion in the matter of granting relief with respect to the period during which he was under suspension or was out of service as a result of dismissal till he was reinstated in service. In this context the sentence in Rule 57 which reads as follows has come up for interpretation:

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....

The contention of the Counsel for the Petitioner is that where the criminal proceedings terminate in acquittal, it goes without saying that a person reinstated is entitled to his full pay and allowances for the period during which he was kept under suspension, or out of service, the disciplinary authority or the appointing authority having no discretion in the matter. This point is contested by the Counsel for the Respondent. According to him, the later part of the sentence only indicates the upper limit upto which the disciplinary authority or the appointing authority, as the case may be, could give relief to the reinstated government servant; and its real significance lies in the fact that it imposes a restriction that except in the case of reinstatement following acquittal the full pay and allowance cannot be granted for the period of suspension. In other words, his submission is that the enabling provision to allow full pay and allowances for the period of suspension, when reinstated on acquittal, does not take away the discretion of the authority concerned to give anything other than the full pay and allowances even in cases relating to reinstatement following acquittal.

From the wording of the Rule, I am more inclined to accept the contention of the Counsel for the Petitioner that the discretion in regard to adjustment of pay and allowances according to the circumstances of the case is only with respect to the cases other than which ends in acquittal; and it does not include cases where the suspension or dismissal was as a result of the operation of the provisions of Rule 58, and there was no other process by which the degree of gravity of the situation could be assessed. It may be noted that in the instant case the suspension and dismissal were as a result of the initiation of the criminal proceedings and conviction in the Criminal Proceedings by the trial court at the first instance. The reinstatement was for no other reason than the case having ended in acquittal. There is, therefore, no other circumstances available for evaluating the degree of gravity of the situation which warrants the exercise of the discretion by the authority concerned. That possibly is the reason why a departure from the procedure contemplated in Rule 56 is seen to have been made under Rule 57 so far as the case of a person who is reinstated on acquittal of the case against him.

For the foregoing reasons the writ petition is allowed; Ext. P-3 is quashed; and it is declared that the Petitioner would be entitled to be treated as though he continued in service from 10th January 1967 to 31st May 1971 during which time either he was under suspension or was out of service. The Respondent would determine the benefits to which the Petitioner is entitled as expeditiously as possible, at any rate within four months from this date. The writ petition is disposed of in terms of the above directions. No costs.