IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 6TH MAY 2008 / 16TH VAISAKHA 1930 WP(C).No. 2080 of 2006(V) ------------------------------------- PETITIONER: ------------------- P.A.MOHANDAS, SON OF GOPALAN NAIR, FORMERLY UPPER DIVISION CLERK, REGIONAL TRANSPORT OFFICE, RESIDING AT 44/2125A, SAHRADAYA LANE, KALOOR, KOCHI-17. BY ADV. SRI.P.S.GEORGE SRI.JOBY CYRIAC RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO PUBLIC WORKS & TRANSPORT (N) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADDITIONAL SECRETARY, GOVERNMENT OF KERALA, TRANSPORT (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON 06/05/2008 DELIVERED THE FOLLOWING: W.P.(C) NO.2080/2006 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE SUPREME COURT ORDET DT. 11.2.02 IN CRL. APPEAL NOS. 214- 215/02. EXT.P2:- COPY OF THE SUPREME COURT ORDER DT. 9.12.03 IN THE REIEW PETITION IN DO. DO. EXT.P3:- COPY OF THE ORDER DT. 5.6.04 PASSED BY THE SIT RESPONDENT. EXT.P4:- COPY OF THE ORDER DT. 11.1.2005 PASSED BY THE 3RD RESPONDENT. EXT.P5:- COPY OF THE ORDER DT. 17.11.05 PASSED BY THE 2ND RESPONDENT EXT.P6:- COPY OF THE G.O.(P) NO.28/2003/P & ARRD DT. 18.9.2003. /TRUE COPY/ P.S. TO JUDGE tss V.GIRI, J. ------------------------- W.P.(C).No.2080 of 2006 ------------------------- Dated this the 6th day of May, 2008. JUDGMENT The scope of Rule 56B(i)(a) of Part I of the KSR vis-a- vis the operation of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960 {for short “the Rules”} comes up for consideration in this case. While this court has, on several occasions, spoken on the nature of the power to be exercised under Rules 56 and 56B of Part I of the Kerala Service Rules {for short “KSR”} dealing with the question as to the pay and allowances that a Government servant is entitled to, on reinstatement after revocation of a suspension, in relation to the period during which he was kept under suspension, the question as to whether Rule 18(b) of the Rules has overriding effect in these matters does not seem to have been specifically raised for consideration in such cases. Counsel on both sides made elaborate submissions on this aspect. 2. The petitioner, while serving as an Upper Division Clerk in the Regional Transport Office, Thrissur, was prosecuted W.P.(C).NO.2080/06 :: 2 :: for an offence under the Prevention of Corruption Act in C.C.No.13/93 before the Enquiry Commissioner and Special Judge, Thrissur. In the meanwhile, taking note of the fact that he was implicated in a criminal case, he was placed under suspension by the Transport Commissioner by order dated 23.11.1991. The commissioner had taken note of the fact that the petitioner was arrested on 19.11.1991 by the Vigilance Department in connection with the corruption (trap) case. The petitioner was convicted by the Court of the Enquiry Commissioner and Special Judge for the offence under the Prevention of Corruption Act and sentenced to rigorous imprisonment for one year. Taking note of the conviction of the petitioner as per judgment dated 25.2.1995, the Transport Commissioner vide order dated 25.10.1995 dismissed the petitioner from service. The petitioner's conviction was confirmed by this court by judgment dated 25.6.2001 in Crl.A.No.190/95. 3. The petitioner preferred a Criminal Appeal before the Supreme Court and by Ext.P1 judgment dated 11.2.2002 the Supreme Court held that the authority, which had W.P.(C).NO.2080/06 :: 3 :: apparently given sanction for prosecuting the petitioner under Section 19 of the Prevention of Corruption Act had no jurisdiction to do so. Therefore, there was an embargo on the court's power to take cognizance for non-compliance of Section 19 of the Prevention of Corruption Act. Accordingly, the proceedings in the criminal case were quashed. The State sought for a review of Ext.P1 judgment, referring to Section 19 (3) of the Prevention of Corruption Act, contending that no finding or sentence passed under the Prevention of Corruption Act shall be reversed on the ground of absence or any omission or irregularities in the sanction required under Section 19(1) of the Act, unless, in the opinion of the court, there was a failure of justice. The Supreme Court, by Ext.P2 order, held as follows: “Earlier refusal to grant sanction brings about entirely a different situation. Looking to all facts and circumstances indicated above we do not find any reason to recall or review our order as ultimately it would not result in any change in the decision of the case. For the above reasons, we decline to interfere in the Review Petitions, which are accordingly dismissed.” W.P.(C).NO.2080/06 :: 4 :: 4. Subsequent to Ext.P2, the petitioner preferred a representation on 1.2.2004, seeking reinstatement with consequential benefits. By G.O.(Rt)No.197/04/Transport dated 5.6.2004, Ext.P3 order, the petitioner's request, as such, was not accepted and the Government held that it is necessary to conduct a departmental enquiry on the allegations on which the penalty was imposed on the petitioner. The Transport Commissioner was directed to conduct the enquiry and furnish the enquiry report with his findings within a time frame. It was further directed that the petitioner will continue under suspension from the date on which he was dismissed as per Government Order dated 29.11.1996 viz., from the date of effect of his original suspension i.e. 23.11.1991. 5. Pursuant to Ext.P3 order, a fresh departmental enquiry was conducted by the Senior Deputy Transport Commissioner. By Ext.P7 order dated 10.1.2005, the Government took note of the fact that the Enquiry Officer has reported that the charge against the petitioner, that he has accepted an amount of Rs.100/- on 19.11.1991 from the Registered owner of a vehicle for the issue of an Engine W.P.(C).NO.2080/06 :: 5 :: clearance certificate, could not be proved clearly. Apparently, the principal witness involved in the said transaction had expired by the time. The Government ordered that the petitioner be reinstated in service and allowed to retire on 31.1.2005. The question of regularisation of the period of suspension was to be finalised later. 6. By Ext.P4 order dated 11.1.2005, the Transport Commissioner, taking note of Ext.P7, reinstated the petitioner in service with immediate effect and posted him as an Upper Division Clerk in the office of the Regional Transport Commissioner, Ernakulam. The petitioner rejoined duty on 14.1.2005 and retired from service on 31.1.2005. 7. The petitioner then filed another representation before the Government seeking regularisation of the period of suspension from 23.11.1991 to 13.1.2005 and to treat the said period in its entirety as duty with all consequential benefits. By Ext.P5 order dated 17.11.2005, the Government held as follows: “Government have examined the case based on the report of the Transport Commissioner, Thiruvananthapuram and W.P.(C).NO.2080/06 :: 6 :: connected records and found that Sri.Mohan Das was reinstated in service based on the report of the Enquiry Officer. The enquiry officer could not clearly prove the base of official position and lack of integrity and devotion to duty in respect of Sri.Mohan Das. It is also found that the delinquent officer was not fully exonerated from the charges levelled against him. In the circumstances Government order that the period spent by Sri.Mohan Das, Retired U.D.Clerk, Motor Vehicles Department under suspension with effect from 23-11-1991 to 13-1-2005 will be treated as duty for the purpose of pension only, limiting his pay and allowance during the suspension period to subsistence allowance already drawn as a special case.” 8. The petitioner has challenged Ext.P5 to the extent to which his pay and allowances from 23.11.1991 to 13.1.2005, the period during which he was kept under suspension was limited to the subsistence allowance already drawn. The petitioner contends that he was originally suspended, taking note of his implication in a criminal case and he was actually dismissed from service taking note of his conviction by the criminal court. On the conviction being set aside or rather the W.P.(C).NO.2080/06 :: 7 :: criminal proceedings themselves being quashed by the Supreme Court under Ext.P1, he was entitled to be reinstated with all back wages and consequential benefits. Though a further departmental enquiry was also conducted, the charges levelled against the petitioner were not proved and therefore, the Government was constrained to order reinstatement of the petitioner. This was done and in such circumstances, the petitioner is entitled to pay and allowances for the entire period commencing from 23.11.1991 to 13.1.2005. Reference in this regard is, inter alia, made to Rule 18(b) of the Rules. 9. The Government has filed a counter affidavit. It is pointed out that the petitioner was convicted by the trial court and the conviction was confirmed by the appellate court and it is not a case where he was 'acquitted of all blame' by the Apex Court. The Supreme Court had interfered with the conviction only on a technical ground dealing with the irregularity in the order of sanction. In fact, Ext.P2 order passed by the Supreme Court, on the review petition filed by the State, makes it clear that the question raised under Section 19(3) of the Prevention of Corruption Act, is actually left open. By Ext.P3 order, the W.P.(C).NO.2080/06 :: 8 :: Government had ordered that a fresh departmental enquiry should be conducted and had further ordered that the petitioner be kept under suspension with effect from the date of original dismissal and such suspension was revoked only on 10.1.2005 when, under Ext.P7 order, the Government had directed reinstatement of the petitioner. It is true that the Government had directed the departmental enquiry to be closed. But even in the said order, it was made clear that separate orders will be passed as regards the pay and allowances to be paid to the petitioner in terms of Rule 56 of Part I of the KSR. The Government had taken into account all relevant facts while passing Ext.P5 order. The entire period of suspension is treated as duty for pensionary benefits. It was limited to the subsistence allowance already drawn insofar as the pay and allowances are concerned. The said order is with jurisdiction and the Government is entitled to pass such an order under Rule 56 of Part I of the KSR. The order is with jurisdiction and is even otherwise justified in law. 10. A reply affidavit has been filed by the petitioner. 11. I heard learned counsel for the petitioner Mr.Roy W.P.(C).NO.2080/06 :: 9 :: Chacko and learned Senior Government Pleader Sri.Nandakumar. 12. I consider it advantageous to formulate the following two issues, as broadly arising for consideration from the pleadings of the parties and the submissions made by the counsel. (a) Does Rule 18(b) of the Rules have overriding effect in all cases where the original suspension of the Government servant was purely as a consequence of his implication in a criminal case? Assuming that there is any incongruity in the operation of the Rules; what is the area of harmonious reconciliation between the provisions of the Rules and the KSR, in the matter of pay and allowances which the Government servant is entitled, for the period during which he was kept out of service? (b) What is the nature of the order that the Government or the competent authority is required to pass, under Rule 56B(1)(a) of Part I of the KSR, in the matter of pay and allowances that a Government Servant is entitled to for the period when he was kept out of duty? Regarding issue No.(a): 13. Chapter VII of KSR is titled “dismissal, removal and suspension”. The provisions thereof deals with the pay and allowances of an officer, who is dismissed or removed from W.P.(C).NO.2080/06 :: 10 :: service. Rule 54 declares that the and pay and allowances of an officer, who is dismissed or removed from service, ceases from the date of such dismissal or removal. Under Rule 55, an officer, under suspension or deemed to have been placed under suspension by an order of the appointing authority, is entitled to the payments as mentioned therein. Under Rule 56, when an officer, who has been dismissed, removed or compulsorily retired is reinstated, as a result of an appeal or review, 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. (B) Whether or not the said period shall be treated as 'period spent on duty'. 14. Under Rule 56(2) where the authority, competent to order reinstatement, is of the opinion that the officer concerned has been fully exonerated, the officer shall, subject to the provisions of Sub-Rule (6), be paid the full pay and allowances to which he would have been entitled to, had he W.P.(C).NO.2080/06 :: 11 :: not been dismissed or removed from service or suspended prior thereto. Rule 56B is relevant in the context and is extracted hereunder. “When an officer who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, or has retired from service on superannuation before the conclusion of the disciplinary proceedings against him 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 suspension ending with re-instatement or 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” 15. Sri.Roy Chacko, learned counsel for the petitioner submits that in the present case, the petitioner was originally suspended, taking note of his implication in a criminal case and was dismissed from service taking note of his conviction in a criminal court. The conviction was set aside by the Apex Court and in fact, according to him, the present case must be placed on a higher pedestal a reversal of the conviction as such. He W.P.(C).NO.2080/06 :: 12 :: contends that the proceedings against the petitioner were quashed by the Supreme Court and it should, therefore, be treated as a case where the petitioner had never been prosecuted in a criminal case as it were. He refers to the judgment of the Supreme Court in State through CBI v. B.L.Verma {1997(10) SCC 772} followed by this court in State of Kerala v. Krishnan P.V. And others {2007(2) ILR Kerala 389}. He further submits that where the petitioner had been kept out of service either by way of suspension or pursuant to an order of dismissal which itself was only in consequence of the petitioner's conviction in a criminal case and the criminal proceedings ultimately are quashed by the court, then the reinstatement must have followed as a consequence thereof. Further, in such cases, there would be no discretion available to the government, in the matter of pay and allowances, that the petitioner is entitled to, as it is a case where he has been illegally kept out of service. He is entitled to pay and allowances as if he had been on duty for the entirety of the period. 16. Sri.Nandakumar, learned Senior Government W.P.(C).NO.2080/06 :: 13 :: Pleader, submits that the pay and allowances that a Government servant is entitled to, in relation to the period of suspension or when he was kept out of service consequent upon dismissal, on such dismissal being reviewed at a later point of time, is a matter governed by the statutory provisions. Sri.Nandakumar submits that Rules 56A, 56B, 57 and 58 cover the situations dealing with the of entitlement of a government servant to pay and allowances in relation to the period when he was kept out of service or kept away from duty, as the case may be, either by way of suspension or consequent upon dismissal which itself was either in consequence of a conviction in a criminal case or consequent upon an order passed in a disciplinary proceedings, as it were. The present case, according to him, would be covered by Rule 56B and the Government is entitled to exercise a discretion to make a specific order regarding the pay and allowances to be paid to the petitioner for the period of suspension ending with reinstatement. This is precisely what has been done under Ext.P5. 17. What is the nature of the period from 23.11.1991 W.P.(C).NO.2080/06 :: 14 :: when the petitioner was originally suspended from service till 14.1.2005 when he rejoined duty after reinstatement. The petitioner was originally suspended on 23.11.1991. He was dismissed from service with effect from the said date as per Government Order G.O.(Rt)No.1555/96 dated 29.11.1996 applying Rule 31(2)(c)(i) of the Rules. But this was purely taking note of his conviction by a criminal court. In effect, therefore, the petitioner was kept out of service consequent upon an order of dismissal passed by the Government which itself was consequent upon his conviction by a criminal court with effect from 23.11.1991. The Supreme Court had quashed the proceedings against the petitioner by Ext.P1 dated 11.2.2002 which was refused to be reviewed under Ext.P2 dated 9.12.2003. If the Government had let the matters end there, then it might have been possible for the petitioner to contend that he was entitled to be reinstated in service with full pay and allowances, inasmuch as his dismissal was consequential upon his conviction in a criminal case and since the proceedings in the criminal court were quashed by the Supreme Court, he should be treated as entitled to the benefit W.P.(C).NO.2080/06 :: 15 :: akin to what is provided in Rue 18(b) of the Rules. I take note of the submission made by Sri.Nandakumar that the present case may not attract Rule 18(b) of the Rules. inasmuch as that the petitioner's dismissal from service was with effect from 23.11.1991, which is prior to the introduction of Rule 18(b) of the Rules in the statute book viz., 27.8.1998. But, I refrain from expressing any opinion as to whether Rule 18(b) of the Rules will apply even to cases where dismissal from service was consequential upon a conviction in the criminal case, prior to the introduction of Rule 18(b) of the Rules in the statute book. This is so because, on facts, it seems to be clear that the petitioner, being kept out of service with effect from 23.11.1991 cannot be treated as one purely consequential upon either his implication in a criminal case or his conviction by a criminal court as such. No doubt, the petitioner was originally suspended on 23.11.1991 pursuant to his arrest by the Vigilance Police and his implication in the criminal case. In fact, he was dismissed consequential upon the conviction by the criminal court. But apparently under Ext.P3 order, the Government had specifically ordered that it was necessary to W.P.(C).NO.2080/06 :: 16 :: conduct a fresh disciplinary enquiry against the petitioner on the allegations on which the penalty of dismissal was originally imposed on him. Government further ordered that the petitioner will continue under suspension from 23.11.1991. In effect, therefore, the petitioner's suspension must be treated as regulated by Ext.P3 order and the fact is that the petitioner was kept out of service from 23.11.1991. Ext.P3 order was not challenged by the petitioner as such. The petitioner has only challenged Ext.P5 order, by which the Government directed that the pay and allowances of the petitioner for the period of his suspension from 23.11.1991 to 13.1.2005 be limited to the subsistence allowance already drawn by him. 18. Once it is, therefore, found that the petitioner's suspension should be treated as one relatable to the disciplinary enquiry which was ultimately held against the petitioner, then obviously Rules 56 and 56B of Part I of the KSR enable the Government to pass orders regarding the manner in which the period spent by the petitioner out of service should be treated for the purpose of pay and allowances. Rule 18(b) of the Rules would be confined in its application only to cases W.P.(C).NO.2080/06 :: 17 :: where the Government servant is kept out of service purely as a consequence of a conviction by a criminal court. Where a Government servant is compelled to remain out of service by reason of a suspension pending disciplinary enquiry either initiated and proceeded with parallel to the proceedings before the criminal court or initiated and completed subsequent to the completion of the proceedings before the criminal court, Rule 18(b) of the Rules would not come to the aid of a Government servant to contend for the position that he is entitled to the entire pay and allowances for the period when he was kept out of service even if the conviction in the criminal court is reversed or set aside. The mode of treatment of the period of suspension would still be governed by Rules 56 and 56B of Part I of the KSR. 19. I am of the view that Rule 18(b) of the Rules would, therefore, be confined to cases where the Government servant is dismissed or removed from service in terms of Rule 18(a) viz., by invoking the provisions contained in item (a) of the second proviso to Clause (ii) of Article 311 of the Constitution. But in cases where the dismissal or removal from W.P.(C).NO.2080/06 :: 18 :: service is based on the conviction by a criminal court and such conviction is ultimately set aside in appeal, the consequences provided under Rule 18(b) would come about only where the Government decides not to conduct any separate disciplinary proceedings against the Government servant. Where the Government, as in the present case, decides to conduct a departmental enquiry and as ancillary thereto, passes an order directing the Government servant be kept under suspension till the enquiry is over, then the mode of treatment of the period when the Government servant is kept away from duty, by reason of such suspension, would still be as provided under Rule 56B of Part I of the KSR. This is precisely what has happened in the present case where under Ext.P3 order the Government, decided that the departmental enquiry should be conducted into the very same allegations and further directed that the petitioner be treated as placed under suspension with effect from 23.11.1991. In such circumstances, the competent authority will be required to pass an order under Rule 56B of the KSR as to the manner in which the period when the Government servant is kept out of duty is to be treated and the W.P.(C).NO.2080/06 :: 19 :: quantum of the pay and allowances that he would be entitled to in relation to the said period. Issue (b): 20. Rule 56A and 57 have been considered by the Apex Court and this court in several decisions. In the circumstances, it is only necessary to refer to the judgments cited by Sri.Nandakumar in this regard. (1) Ponnamma v. State of Kerala {1997 (1) KLT 720 (SC)}, (2) Ramachandran v. Director of Health Services {2002 (2) KLT SN 121 Case No.148}. (3) Mohammed Easa Sahib v. DIG of Police {1990(2) KLT 462} (4) Appukuttan Pillai v. State of Kerala {2001(2) KLT SN page 40, Case No.45} (5) Kerala State Bandloom Development Corporation Ltd. v. Nanu {2002(3) ILR Kerala 270}. (6) Management of RBI v. Bhopal Singh Panchal {1994(1) SCC 541}. (7) Vikraman Pillai v. State of Kerala {2003(2) KLT 397} (8) Travancore Devaswom Board v. Rajasekharan W.P.(C).NO.2080/06 :: 20 :: Nair {2003(2) KLT 882}. 21. The consistent view that has been taken by the Apex Court and this court as to the scope of the right available to a Government servant, construing the provisions of Part I of the KSR, is that an order will have to be passed by the Government or the competent authority as regards the pay and allowances of the Government servant in relation to the period when he was absent from duty and the manner in which the period when he was kept out of service is to be treated. Except in cases where the acquittal by the