IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 WP(C).No. 23089 of 2005(W) -------------------------- PETITIONER: --------------- K.N. BALACHANDRAN PILLAI, RETIRED ASST. EXECUTIVE ENGINEER (CIVIL), K.S.E.BOARD, RESIDING AT KALLENMACKAL HOUSE, KOLAPRA, KUDAYATHOOR P.O., THODUPUZHA, IDUKKI DISTRICT. BY ADV. MR. C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE MR. ELVIN PETER P.J. MR. S.RAMESH MR. P.N.SANTHOSH MR. NAVEEN.T MR. T.G.SUNIL (PRANAVAM) MR. C.X.ANTONY BENEDICT MS. POOJA SURENDRAN RESPONDENTS: --------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. R1 AND R2 BY ADV. MR. ASOK M.CHERIYAN, SC, KSEB MR. PULIKOOL ABUBACKER, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) 23089 OF 2005 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE ORDER B.O. NO. 2025/96 (VIG. AII - 2650/96) DATED 23.08.1996 ISSUED BY THE KSE BOARD EXT. P2 : TRUE COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS NO. VIG. C1/48/96 DATED 22.10.1996 ISSUED BY THE KESB. EXT. P3 : TRUE COPY OF EXPLANATION DATED 22.11.1996 SUBMITTEDBY THE PETITIONER. EXT. P4 : TRUE COPY OF THE JUDGMENT DATED 20.01.2005 IN C.C. 17/2000 OF THE COURT OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, THRISSUR. EXT. P5 : TRUE COPY OF ORDER NO. LASI/3609/2001 DATED 13.07.2001 ISSUED BY THE KSE BOARD EXT. P6 : TRUE COPY OF ORDER NO. VIG/AII/2650/96 DATED 29.10.2008 ISSUED BY THE 2ND RESPONDENT. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No . 23089 of 2005 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st October, 2011 JUDGMENT The petitioner, while working as the Assistant Executive Engineer in the respondent Board, was placed under suspension as per Ext. P1 order dated 23.08.1996 alleging certain serious misconducts, involving some criminal offence. The petitioner was proceeded against, arraying him as the first accused in C.C. 17 of 2000 of the Enquiry Commissioner and Special Judge, Thrissur in respect of the various offences under Sections 13 (1) (c) and (d) r/w 13 (2) of the Prevention of Corruption Act 1988 and Sections 120 B, 409, 468, 471 and 477 A r/w s. 34 of IPC. On receipt of Ext. P2 memo of charges, the petitioner submitted Ext. P3 explanation of 22.11.1996 and later, he was reinstated in service on 31.05.1997. The petitioner retired from the service on 31.10.1997. 2. While so, the criminal case against the petitioner and others who were arrayed as the accused ended in acquittal as borne by Ext. P4 judgment. It was observed by the concerned Court in Ext. P4 that the prosecution had not succeeded in establishing the alleged criminal conspiracy among the accused Nos. 1 to 3 or about the falsification of W.P. (C) No. 23089 of 2005 : 2 : accounts or criminal breach of trust or forgery for the purpose of cheating and if that be so, the accused have not committed the offences punishable under Sections 120 B, 409, 468, 471 and 477 A r/w s. 34 of IPC. 3. Despite the retirement of the petitioner from service on 31.10.1997, the retirement benefits payable to him were not disbursed. The respondent Board was having a contention that the much loss was caused to the Board, which was cited as the reason for not granting the pensionary benefits. Met with the situation, the petitioner approached this Court by filing O. P. No. 6734 of 2001, which was disposed of, directing the respondent Board to consider the representation preferred and to pass appropriate orders. Pursuant to the said verdict, the Board passed Ext. P5 order dated 13.07.2001, whereby the total liability was fixed as Rs. 68212.87; a sum of Rs. 17,000/- (approximately 1/4th of the total loss) was earmarked as the share of the petitioner and the balance amount was released on different dates. 4. On finalization of the criminal trial as per Ext. P4 judgment, the petitioner pursued the matter before the Board further and since there was no positive response, the present writ petition was filed for various reliefs, including for the disbursement of the amount, which W.P. (C) No. 23089 of 2005 : 3 : was retained as per Ext. P5 and for granting interest for the delayed payments. Regularization of the period of suspension from 23.08.1996 to 31.05.1997 by treating the same as 'duty' and to disburse the arrears of salary setting off the subsistence allowance disbursed, was also sought. 5. During the pendency of the above proceedings, the matter was considered by the Board, who passed Ext. P6 order dated 29.10.2008, referring to Ext. P4 judgment acquitting the petitioner and the petitioner was accordingly exonerated from all the charges levelled against him vide Ext. P2. However, it was also observed in Ext. P6 order, that the period spent under suspension would be treated as 'eligible leave/leave without allowances'. It was in the said circumstances, that the petitioner chose to have the writ petition amended, also challenging Ext. P6 to the aggrieved extent. 6. Heard the learned counsel for the petitioner as well as the learned standing counsel appearing for the respondent Board. 7. The learned counsel for the petitioner submits that Ext. P6 order passed by the Board ordering the period of suspension to be treated as 'eligible leave' is obviously without giving any notice of hearing to the petitioner and hence there is violation of the statutory W.P. (C) No. 23089 of 2005 : 4 : prescription particularly under Rule 56 (B), Part I KSR. The learned counsel submits that the respondent Board, having decided to exonerate the petitioner from all the charges, the period of suspension ought to have been reckoned as 'duty' and should have disbursed all the consequential benefits. Reliance is sought to be placed on the decisions rendered by this Court in Pathrose Vs. Kerala Water Authority (2008 (3) KLT 635) and Gangadharan Vs. State of Kerala and others (ILR 2009 (1) Ker. 554). 8. Going by the materials on record, the rule position and also the judgments as aforesaid, the petitioner will be entitled to get the benefit in toto, only if competent authority is satisfied that the suspension was wholly unjustified. Sub Rule 3 of Rule 56 B of Part I KSR reads as follows : (3) Where the Authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the officer shall, subject to the provisions of sub-rule (8) be paid the full pay and allowances to which he would have been entitled, had he not been suspended : Provided that where such authority is of the opinion that the termination of the proceedings instituted against the officer had been delayed owing to reasons directly attributable to the officer, it may after giving him an opportunity to make his representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the officer shall be W.P. (C) No. 23089 of 2005 : 5 : paid for the period of such delay on such amount (not being the whole) of such pay and allowances as it may determine True, by virtue of the statutory prescription, if the authorities decide to treat the period of suspension as eligible leave/leave without allowances, such order can be passed only after giving an opportunity of hearing to the petitioner, which course has not been pursued in this matter. As such, there is considerable force in the submission made by the learned counsel for the petitioner that Ext. P6, to the said extent, is liable to be intercepted by this Court. After hearing both the sides, this Court does not require a second thought to cause Ext. P6 to be reconsidered to the said extent. It is ordered accordingly. 9. With regard to the retention of sum of Rs. 17,000/- from the pensionary benefits payable to the petitioner vide Ext. P5, it remains a fact that the said amount was withheld as part of the loss liable to be satisfied by the petitioner towards the total loss caused to the respondent Board. But in Ext. P4 judgment, there is a clear observation by the concerned Court that the loss was fixed with reference to the measurements taken by PW2 and PW3 and that such measurements were not in tune with the actual facts and figures. When there is a positive observation that the measurements taken by the concerned W.P. (C) No. 23089 of 2005 : 6 : witnesses were not correct, fixation of loss has also necessarily to go, the same being without adequate support/proof. The trial court has acquitted the petitioner of the charges/offences levelled against him and it was after considering Ext. P4, that the respondent Board passed Ext. P6 order exonerating the petitioner from the charges levelled as per Ext. P2 memo of charges. This being the position, this Court finds that there is no rhyme or reason for retaining a sum of Rs. 17,000/- and the petitioner is entitled to get back the said amount. 10. In the above circumstances, the respondents are directed to disburse the sum of Rs. 17,000/- withheld from the retirement benefits of the petitioner vide Ext. P5 forthwith, at any rate within one month from the date of receipt of copy of the judgment. 11. With regard to the sustainability of Ext. P6, it is set aside for the reason mentioned hereinbefore, to the extent it has treated the period of suspension from 23.08.1996 to 31.05.1997 as 'eligible leave/ leave without allowances'. The respondent Board is directed to reconsider the said issue as to how the said period is to be dealt with, after issuing a proper notice and giving an opportunity of hearing to the petitioner, in full compliance of Rule 56 B of Part I KSR. The proceedings as above shall be completed in accordance with the W.P. (C) No. 23089 of 2005 : 7 : relevant provisions of law and also the binding judicial precedents on the point to be cited by either side, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. Sd/- P. R. RAMACHANDRA MENON, JUDGE kmd