IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 WP(C).No. 28660 of 2003(J) ----------------------------------------- PETITIONER: -------------------- T.MOOSAKOYA, S/O. ALI HAJI, PRESENTLY WORKING AS PEON IN THE OFFICE OF THE DISTRICT GOVT.PLEADER AND PUBLIC PROSECUTOR OFFICE, KOZHIKODE (RESIDING AT VIRIPPIL HOUSE, PERINGALAM, P.O. KUNNAMANGALAM, PIN-673 571, KOZHIKODE DISTRICT). BY ADV.SRI.C.AJITH KUMAR SRI.T.T.MUHAMOOD RESPONDENTS: ------------------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT, CIVIL STATION P.O., KOZHIKODE, REP. BY PUBLIC PROSECUTOR, KERALA HIGH COURT. 2. LAND REVENUE COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, TRIVANDRUM-695 033. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SR.GOVERNMENT PLEADER SRI. BENJAMIN PAUL R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28660/2003 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PROCEEDINGS A4.65970/92 DTD. 29/12/92 OF THE 1ST RESPONDENT. EXT.P2: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DTD. 1/1/2002. EXT.P3: COPY OF PROCEEDINGS OF THE 1ST RESPONDENT DTD. 11/07/2002. EXT.P4: COPY OF PROCEEDINGS L.R.D4.28280/02 DTD. 5/2/2003 OF THE 2ND RESPONDENT. EXT.P5: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE THIRD RESPONDENT DTD. 20/02/2003. EXT.P6: COPY OF ORDER NO.1952/03/REV. DTD. 4/07/03 OF THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== W.P.(C)NO. 28660 OF 2003 ============================ DATED THIS THE 26th DAY OF AUGUST 2008 JUDGMENT Balakrishnan Nair,J. This writ petition is referred to the Division Bench as per the following reference order: “The petitioner, who is involved in multiple offences and got charge sheeted in several cases, got out of the cases through acquittals, settlement, compounding, etc. He was placed under suspension during the period of pendency of the criminal cases and reinstated after he was acquitted by Criminal Court. Learned Government Pleader submitted that acquittal is only in one case and in the remaining cases, the matter was compromised. It is seen that petitioner was given all the benefits except salary and allowances during the period of suspension. The claim of the petitioner under Rule 18(iii)(b) of the Kerala Civil Services (C.C.& A.) Rules, 1960 is for salary and allowances during the period of suspension. In this case, even though petitioner was suspended based on the criminal case, no disciplinary proceeding was continued against petitioner and the same was dropped W.P.(C)NO. 28660/2003 -2- after he was acquitted by the Criminal Court. The Rule above referred provides for automatic grant of service benefits to an employee whose conviction and sentence are set aside in appeal. If this principle is applied in petitioner's case, he is entitled to full wages and allowances during the period of suspension because disciplinary proceedings were not continued after his acquittal by Criminal Court. I am of the view that disciplinary proceedings and conviction in criminal case are entirely different. Convicted persons get acquittal from Appellate Court on various grounds. However, in the disciplinary proceedings, if there is clear evidence of mis-conduct by the employee, punishment should be imposed irrespective of out come of the proceedings of the Criminal Court, where the employee probably would have been charge sheeted. The above Rule provides for automatic restoration of service benefits to the employee after acquittal in a criminal case by any Court at any stage. I feel, the Rule will not help maintenance of discipline among Government servants. In many cases, where the accused get acquittal, Civil Courts pass decree upholding the claim of victims arising from same transaction. Similarly, I am of the view that disciplinary proceedings should be an independent proceeding and it's fate should not merely depend on the ultimate result in a criminal case. In other words, if there is sufficient evidence to prove indiscipline on an employee though W.P.(C)NO. 28660/2003 -3- initiated based on a criminal case, the result of such disciplinary proceeding should not be neutralised by judgment of Criminal Court. Having regard to the importance of the issue, I refer this case for decision by Division Bench, particularly to consider the validity of the above Rule.” 2. Rule 18 of the Kerala Civil Services (C.C.& A)Rules, 1960 deals with the entitlement for salary and allowances of an incumbent, who was dismissed or removed from service on conviction by a criminal court and later the conviction is set aside on appeal or revision. In this case based on his conviction by the criminal court, he was never removed or dismissed from service. Therefore, the above said Rule has no application to the facts of this case. Therefore, it is unnecessary to consider the point referred by the learned single Judge. 3. The brief facts of the case are the following: The Kunnamanglam police registered a crime against the petitioner as Crime No.184/1992 for the offence punishable under Sections 120B, 417, 420 and 465 read with Section 34 of the Indian Penal Code. He was the first accused in that crime and his wife was the second accused. The allegation was that the petitioner's wife W.P.(C)NO. 28660/2003 -4- was running a furniture mart and the petitioner issued a cheque to one of the parties, who was having dealings with the furniture mart. The cheque leaf used was relating to the Bank account of his wife. But the petitioner put his correct signature in the cheque leaf . So the cheque was dishonoured and the party filed a complaint before the Magistrate's court which was referred to the police under Section 156(3) Cr.P.C. Later, the police filed final report in that case against him. There were three other cases also concerning the issuance of three more cheques in similar circumstances, it is submitted. Finally in all those cases he was acquitted. His wife was acquitted by the trial court itself. The acquittal of the petitioner in one case was by the appellate court. In other cases the acquittal was based on compounding. 4. With the registration of the aforementioned crime in 1992, he was placed under suspension by Ext.P1 order dated 29-12-1992. Finally, when in all the cases he was acquitted, he moved the District Collector for reinstatement by filing a representation, a copy of which is produced as Ext.P2. The District Collector passed Ext.P3 order on his representation. It W.P.(C)NO. 28660/2003 -5- was ordered to treat the period he was out of service as eligible leave and also to recover the subsistence allowance paid to him during the above period. On appeal, the Land Revenue Commissioner affirmed the order of the District Collector as per Ext.P4 dated 5-2-2003. The petitioner moved the Government by filing Ext.P5 petition. The said petition was allowed by the Government by Ext.P6 order dated 4-7-2003. The Government ordered to treat the period from14-12-1992 to 31-7-2002 during which he was under suspension, as duty for all purposes except for salary and allowances. It was also ordered that he is eligible to get the subsistence allowance for that period. The petitioner is aggrieved by the said direction. He claims entire salary for the period he was suspended. Claiming that relief, this writ petition is filed. 5. The third respondent has filed a counter affidavit stating that the petitioner was not acquitted of blame. The benefit of doubt was extended to him and he was acquitted. Some cases were compromised or compounded and thereby he wriggled out of liability. Therefore, he is not liable to get the full pay and allowances, it is stated in the counter affidavit. W.P.(C)NO. 28660/2003 -6- 6. We heard the learned counsel on both sides. We are of the view that the case of the petitioner is covered by Rule 56(b) and Rule 57 of Part I of the Kerala Service Rules. The petitioner claimed full pay and allowances on acquittal of the criminal cases. The competent authority has to decide, in the light of the aforementioned Rules, whether the petitioner is entitled to get the full salary and allowances or not. In this case, we find that the Government have not considered the above aspect in the light of the relevant Rules. Though the Government have defended its order by filing a counter affidavit, we feel that the reasons urged by the Government before this Court should have found a place in the impugned order. Ext.P6 being a statutory order affecting the rights of the parties, its validity has to be tested with reference to the grounds mentioned therein and not based on those supplied in the form of counter affidavit. 7. In view of the above position, we are of the view that the Government should reconsider the matter after affording an opportunity of being heard to the petitioner. Accordingly, Ext.P6 to the extent it says that the petitioner is eligible to get only the subsistence allowance for the period he was kept out of service W.P.(C)NO. 28660/2003 -7- pursuant to Ext.P1 suspension order is set aside. The Government shall afford an opportunity of being heard to the petitioner and pass fresh orders on the claim of the petitioner for full salary for the above period in the light of the above mentioned Rules within four months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. Sd/- K. BALAKRISHNAN NAIR, JUDGE Sd/- M.C. HARI RANI JUDGE ks.