IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 28TH JUNE 2010 / 7TH ASHADHA 1932 WP(C).No. 17273 of 2009(S) -------------------------- TA.77/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- D.PRISEKUTTY, S/O.DANEIL, AGED 53 YEARS, TELECOM MECHANIC, BSNL PERUMBALAM, RESIDING AT EDAPPURAYIL HOUSE, KARAKKAD P.O., CHENGANNUR, KERALA. BY ADV. SRI.SAJITH KUMAR V. SMT.G.R.LEKSHMI SRI.RINOY JOSEPH RESPONDENT(S): --------------- 1. ASSISTANT GENERAL MANAGER, BSNL, CHENGANNUR, ALAPPUZHA. 2. THE CHIEF GENERAL MANAGER, BSNL, TRIVANDRUM. 3. DEPUTY GENERAL MANAGER, TELECOM (DET), BSNL, ALAPPUZHA. 4. DIVISIONAL ENGINEER, TELECOM (DET), BSNL, CHENGANNUR. ADV. SRI.MATHEWS K.PHILIP,SC, BSNL FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).17273/09 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.DGM (A)/ALP/DISC/DP/TM/3 DATED 04.04.07 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P2: COPY OF THE CERTIFICATE IN O.S.316/99 OF THE MUNSIFF'S COURT, CHENGANNUR. EXT.P3: COPY OF THE LETTER DATED 22/05/2001 ISSUED BY THE MUNSIFF'S COURT TO THE GENERAL MANAGER, TELECOM, ALLAPUZHA DISTRICT. EXT.P4: COPY OF THE ORDER NO.XI/2001-2002/1 DATED 30.5.2001 ISSUED BY SDE, BSNL, CHENGANNUR. EXT.P5: COPY OF THE ORDER NO.X1/2001-2002/1 DATED 10.02.2002 ISSUED BY THE 4TH RESPONDENT ALONG WITH ARTICLES OF CHARGE, STATEMENT OF IMPUTATIONS OF MISCONDUCT. EXT.P6: COPY OF THE INQUIRY REPORT DATED 26/09/2003 FORWARDED BY ORDER NO.XI/DET/CGR/2003-04/7 DATED 30/10/2003 ISSUED BY THE 4TH RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DATED 24/11/2003 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXT.P8: COPY OF THE ORDER NO.XI/DET-CGR/2003-04/8 DATED 29/12/2003 ISSUED BY THE 4TH RESPONDENT. EXT.P9: COPY OF THE MEMO NO.DGM(O)/ALP/X-2/APPEAL/04-05/4 DATED 24/06/2004 ISSUED BY THE 3RD RESPONDENT. EXT.P10: COPY OF THE ORDER NO.Q-1941/67 DATED 16/12/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P11: COPY OF THE JUDGMENT DATED 5/7/2006 IN W.P.(C).NO.2194/06 OF THIS HONOURABLE COURT. EXT.P12: COPY OF THE JUDGMENT DTED 28/7/06 IN W.A.NO.1379/06 OF THIS HONOURABLE COURT. EXT.P13: COPY OF THE ORDER NO.DGM (A)/ALP/DISC/DP/TM/ DATED 3.1.2007 ISSUED BY THE 3RD RESPONDENT. EXT.P14: COPY OF THE OBJECTION DATED 1/3/07 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. WP(C).17273/09 EXT.P15: COPY OF THE ORDER NO.DET/KTD/DP/IV/2 DATED 2/1/06 ISSUED ON 2/1/07 BY THE 4TH RESPONDENT TO THE PETITIONER. EXT.P16: COPY OF THE ARGUMENT NOTE SUBMITTED BY THE PETITIONER IN W.P.(C). 16202/07 OF THIS HONOURABLE COURT. EXT.P17: COPY OF THE ORDER IN T.A.NO.77/2008 DATED 28TH APRIL 2009 BY THE HONOURABLE CAT. EXT.P18: COPY OF THE PLEADING OF THE WRIT PETITION NO.16202/07 (TA.77/2008). EXT.P19: COPY OF THE COUNTER AFFIDAVIT IN W.P.(C).16202/07. RESPONDENTS EXHIBITS: EXT.R1(A): COPY OF THE ORDER DATED 28/12/95. EXT.R1(B): COPY OF THE PUNISHMENT ORDER DATED 17/3/99. EXT.R1(C): COPY OF THE JUDGMENT IN W.A.1379/06. EXT.R1(D): COPY OF THE JUDGMENT IN COC.NO.1599/06. EXT.R1(E): COPY OF THE ORDER DATED 21.1.2006 ISSUED BY THE DISCIPLINARY AUTHORITY. EXT.R1(F): COPY OF THE ORDER DATED 3/1/2007 ISSUED BY DGM, BSNL, ALAPPUZHA. EXT.R1(G): COPY OF THE ORDER IN COC.491/07. EXT.R1(H): COPY OF THE ORDER DATED 4/4/2007. EXT.R1(I): COPY OF TH ORDER DATED 19/5/2009. /TRUE COPY/ P.A. TO JUDGE THOTTATHIL B. RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------- W.P.(C).NO.17273 OF 2009 () ----------------------------------- Dated this the 28th day of June, 2010 J U D G M E N T THOTTATHIL B. RADHAKRISHNAN, J. The writ petitioner underwent a period of imprisonment in connection with a civil case. On that count, disciplinary proceedings were initiated and he was compulsorily retired from service. In W.P.(C).No.2194 of 2006, this Court quashed the order of compulsory retirement and directed petitioner's reinstatement in service forthwith with all service benefits. The Division Bench found that the petitioner had not informed the superior officers about the imprisonment in civil jurisdiction and, therefore, it may be that there could be non-compliance of the relevant rule. Accordingly, the Division Bench let the establishment impose a minor penalty and the judgment of the learned Single Judge was sustained in every other respect. WPC.17273/09 2 Thereafter, the establishment imposed the minor penalty of reduction in pay to the lower stage for three years. This imposition, as a minor penalty, could have been within the format of the decision of the Division Bench in W.A.No.1379 of 2006. At the same time, the period from 22.5.2001 to 31.12.2003, the period spend under suspension was ordered by the establishment to be treated as period of suspension and by limiting the allowances for that period to the amount already paid towards the subsistence allowance. This was challenged by the petitioner before the Tribunal. In the impugned Ext.P17, the Tribunal viewed the decision of the learned Single Judge of this Court in a particular manner and noted that in the writ appeal, the establishment was given the liberty to impose a minor penalty. However, the Tribunal further held that the treatment of the period of absence from 22.5.2001 to 31.12.2003 prior to the petitioner's compulsorily retirement as suspension and limiting the allowance to the amount already paid is in order. This finding does not stand. This Court had set aside the order of compulsory retirement and had directed reinstatement of the WPC.17273/09 3 petitioner in service forthwith with all service benefits, subject only to the interference made by the Division Bench in writ appeal leaving the establishment with the opportunity to impose a minor penalty. This finality attained by that judicial proceeding left no further room for the establishment to hold that it would treat the period of absence from 22.5.2001 to 31.12.2003 as only a period of suspension and limiting the entitlement to be only for allowances due on that premise. Even if the disciplinary authority has the power to decide as to how the period spent under suspension is to be treated, that power no more survived the judicial decision rendered by this Court in the earlier round. The Tribunal erred in law and jurisdiction in refusing to interfere with that direction of the establishment. Resultantly, this writ petition succeeds. The impugned Ext.P17 decision of the Tribunal is quashed to the extent it is against the petitioner and the establishment is directed to pass revised orders treating the period of suspension from 22.5.2001 to 31.12.2003 as service for all purposes in terms of Ext.P11 WPC.17273/09 4 judgment in W.P.(C).No.2194 of 2006 and release service benefits accordingly. Let this be done within two months from the date of receipt of a copy of this judgment. Writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN JUDGE S.S.SATHEESACHANDRAN JUDGE prp WPC.17273/09 5