Thomas, K.V. vs State of Kerala and Others

Radhakrishnan, J.—Appellant while working as Head Constable in the Kottayam Police Station was served with a memo of charges. The first charge was that he had misbehaved with the Manager of a hotel on 12th November 1983 using abusive language and caused inconvenience to the conduct of hotel business and the second charge was that on 24th January 1984 in a drunken state he misbehaved indecently in public affecting the dignity of the police force. On the basis of the memo of charges disciplinary proceedings were initiated against him. He was found guilty of both the charges and was imposed with the punishment of compulsory retirement from service with effect from 16th February 1984. Appeal preferred by the Appellant was rejected by the Inspector General of Police, against which he preferred appeal before the Government which was also rejected vide order dated 5th January 1988. Those orders were earlier challenged by the Appellant before this Court in O.P. No. 5672 of 1988. This Court however set aside the Government order dated 5th January 1988 stating as follows:

I do not intend to enter into the various points on the merits, mentioned by the Original Petitioner, inasmuch as I am of the view that the order Ext. P-10 is liable to be quashed on the last ground mentioned by the Petitioner namely it is not a speaking order....

The Original Petition is therefore allowed in part. The order Ext. P-10 is quashed. The second Respondent Government is directed to reconsider the Petitioner''s appeal in accordance with law, and in the light of the observations contained hereinabove, and Rule 35. Government shall pass a proper order in the matter within a period of four months from the date of receipt of a copy of this judgment, after affording an opportunity to the Petitioner to be heard either in person or through counsel.

The above-mentioned judgment was delivered by this Court on 27th May 1992. While the matter was pending before this Court Appellant attained the age of superannuation on 31st March 1989. As directed by this Court the matter was reconsidered on merits and Government passed Ext. P-2 order dated 3rd March 1993 cancelling the earlier punishment of compulsory retirement from service and imposed a lesser punishment of barring of two increments with cumulative effect from 16th February 1984, and decided to reinstate the Appellant in service with effect from 16th February 1984.

Government later took steps to regularise the services of the Appellant for finalisation of his retirement benefits. Government therefore proposed to treat the period from 16th February 1984 to 31st March 1989 as duty for the limited purpose of pension and pay and allowances were limited to the subsistence allowance already drawn. To the said proposal objections were called for from the Appellant. Objections were filed but overruled by the Government vide order dated 23rd November 1993 which was under challenge in the Writ Petition. Learned Single Judge of this Court upheld the order of the Government against which this appeal is preferred.

Counsel for the Appellant Shri Ashok Kumar contended that the Appellant is entitled to get salary from the date of reinstatement, that is from 16th February 1984. Counsel made reference to Rule 56A(3) of Part I K.S.R. and submitted that if the dismissal, removal or compulsory retirement of an officer is set aside by the court on the merits of the case, the period intervening between the date of dismissal, removal or compulsory retirement, including the period of suspension preceding such dismissal, removal or compulsory retirement, as the case may be, and the date of reinstatement shall be treated as duty for all purposes and he shall be paid the full pay and allowances for the period to which he would have been entitled, had he not been dismissed, removed or compulsorily retired.

Learned Government Pleader, Sri. C.T. Ravikumar, on the other hand contended that the relevant rule which is applicable is Rule 56(1) of Part I, K.S.R. and the reference was wrongly made to Rule 56(4) in the Government order. According to the learned Government Pleader the wrong quoting of the rule would not vitiate the order when power can be traced to Rule 56(1) of Part I, K.S.R.

Counsel for the Appellant relied on the decisions of this Court in Malathy Krishnakumar v. The Plantation Corporation of Kerala ILR 1998 Ker 404, M.P. Kurian v. State of Kerala ILR 1991 Ker. 47 and Sunny v. Kerala Water Authority (1996) 2 KLT 138 and the decision of the Supreme Court in Manorama Verma v. State of Bihar 1994 (3) S.C.C. 671 and contended that on reinstatement the employee is entitled to full pay and allowances. Learned Government Pleader on the other hand relied on the decision in George v. State of Kerala 1976 KLT 309.

We have gone through the decisions cited by both counsel. We are of the view that decisions cited by counsel for the Appellant are not applicable to the facts of this case. In those cases orders impugned were found to be bad in law on merits. This is a case where this Court set aside the earlier Government order since it was not a speaking order, and directed the Government to reconsider the matter. This Court did not interfere with the disciplinary proceedings or the order passed by the Inspector General of Police dated 21st May 1986. It only directed the Government to reconsider the appellate order since it was not a speaking order. While reconsidering the matter, Government thought it fit to impose a lesser punishment of barring two increments with cumulative effect and since the Appellant already retired from service orders were issued as to how the period of suspension has to be reckoned.

Learned Government Pleader is right in his contention that this Court never found that the order of compulsory retirement was bad, and therefore the provision which is applicable to the facts of this case is Rule 56(1) of Part I, K.S.R. The relevant portion of which is extracted below:

When an Officer who has been dismissed, removed or compulsorily retired including an officer who has been compulsorily retired under Rule 60A, is reinstated as a result of appeal or review or would have been so reinstated, but for his retirement on superannuation while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order:

(a) regarding the pay and allowances to be paid to the officer for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be,

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Even though the provision was mis-quoted, we are of the view that Government have got power to determine how the period of suspension has to be reckoned. In exercise of that power Government have taken the view that the period of suspension is to be treated as duty for the limited purpose of pension, limiting the pay and allowances to the subsistence allowance already drawn. We are of the view that Government is justified in doing so in the facts and circumstances of this case.

Proceedings under Rule 56 are sequel to the final order already passed in the main disciplinary proceedings and both the concerned officer as well as the authority passing the order under Rule 56 can be reasonably assumed to be fully conversant with the findings entered in the disciplinary proceedings and the evidence relied on in support of those findings. All that the authority passing the order under Rule 56 is enjoined to do is to apply its mind to the limited question whether in the light of findings arrived at in the disciplinary proceedings it can be said that the suspension was wholly unjustified and if its conclusion is that it was not wholly unjustified the authority has to further consider and decide as to what proportion of the pay and allowances the officer must be given for the period during which he was under suspension.

Government while considering the matter awarded the punishment of barring of two increments with cumulative effect and decided to treat the period of suspension as duty for the limited purpose of pension. The fact that the Appellant had attained the age of superannuation on 31st March 1989 was within the knowledge of the Government while exercising the power under Rule 56(1) of Part I, K.S.R.

We are of the view that Rule 56(1) of Part I, K.S.R. gives ample power to the Government to decide as to how the period of suspension should be treated, and the Government was justified in limiting the pay and allowances to the subsistence allowance drawn. We do not therefore find any infirmity in the judgment of the learned Single Judge. Writ Appeal lacks merits, and the same is dismissed.